Joseph E. Foreman, a rapper also known as “Afroman,” is the subject of a filing in Ohio (below) by seven police officers alleging that he has misused their images to sell merchandise and place them in a false light. The images, however, were taken during a raid on Foreman’s home, which failed to turn up any evidence of criminal conduct. I am skeptical of the claims, but there are novel elements that could lead to some important clarifications under Ohio tort law.
In August 2022, the four deputies, two sergeants and a detective with the Adams County Sheriff’s Office in West Union were part of a raid on Foreman’s home in Winchester, Ohio. The warrant indicates that the search was for evidence of kidnapping, marijuana and drug paraphernalia related to drug possession and trafficking. Foreman was not at home but his wife was home and filmed the raid. Security cameras also captured footage.
Known for his song “Because I Got High,” Foreman, 48, proceeded to post pictures from the raid on videos and on social media. Deputies Shawn Cooley, Justin Cooley, Shawn Grooms and Lisa Phillips, as well as sergeants Michael Estep and Randolph Walters Jr. and detective sergeant Brian Newland then sued him for the unauthorized use of individual’s persona, invasion of privacy by misappropriation and invasion of privacy by false light publicity, among other things.
We have previously written about attempts of police departments to criminally charge citizens for filming them in public, an effort that I have long criticized. Courts have largely rejected those claims.
However, in this case, the officers are not alleging privacy torts like intrusion upon seclusion. They are focusing on the use of the images for selling merchandise and other commercial purposes.
Ohio has codified the common law of misappropriation of name or likeness at Section 2741.02 below. The law contains an exception for “any news, public affairs, sports broadcast, or account.” It also has an exception for “any political campaign.” However, it does not exempt the use of footage in creative work.
I have serious concerns over the complaint. This is a raid on Foreman’s home, which he obviously opposed, as a baseless and excessive use of force. As an artist, he is expressing that opposition through videos and other means. It clearly has a political component on the use of law enforcement authority and issues of racial justice. If he put the pictures on signs and picketed in front of the police department, he would presumably be protected. Foreman used digital and video means to make the same point.
While I believe it is unfair to single out these officers who were carrying out their orders under a valid warrant, these are officers of the state filmed in and around Foreman’s home.
It appears true that some of these images were used to sell commercial products, including promotional videos. In an Instagram post, he wears a shirt with the images and thanked one of the officers for helping him get 5.4 million views on TikTok. In a social media posting, he writes “Congratulations again you’re famous for all the wrong reasons” and in another post, he called an officer “Police Officer Poundcake,” showing him glancing at a glass-domed dish holding a cake. In an interview on the YouTube channel VladTV, Foreman talks about how the raid inspired him to write the song “Lemon Pound Cake.”
Some of these images admittedly amount to taunting and, in my view, are excessive. I can understand why these officers object to be being highlighted in such public attacks by a celebrity. Yet, they are part of an official operation conducted in Foreman’s home.
Moreover, if Foreman wrote a book with these images, the same would be true. The case could lead to important clarification on what constitutes protected speech.
I also have concerns over the false light claim.
While some states have rejected false light claims in favor of using defamation actions exclusively, Ohio recognizes both claims. Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.
The complaint simply says that Foreman’s portrayal of the officers puts them in a false light and subjects them to “undue ridicule, embarrassment, mental distress, and danger.” However, Foreman has a right to object to the raid as unjustified and even racially motivated. That is part of an overall national debate on such claims. Many would disagree with such suggestions in this case, but Foreman has a right to raise the issues and, in my view, use the images. Officers can claim that the images looking at the cake make them look unprofessional, but there is countervailing imagery of the raid as not just serious but frightening. It all, again, goes to Foreman’s views of the basis and conduct of law enforcement.
If an artist painted a scene from the raid on Stonewall Inn or the crackdown on Freedom marchers, would the sale constitute a misappropriation violation?
I am sympathetic with the objections of the officers. Foreman is clearly using his celebrity status to extract a degree of revenge in my view. However, the liability for showing officers in a raid could have a chilling effect on political speech, including when such speech is a component of creative work.
Here is the complaint: Cooley v. Foreman.
Here is Section 2741.02:
A) Except as otherwise provided in this section, a person shall not use any aspect of an individual’s persona for a commercial purpose:
(1) During the individual’s lifetime;
(2) For a period of sixty years after the date of the individual’s death; or
(3) For a period of ten years after the date of death of a deceased member of the Ohio national guard or the armed forces of the United States.
(B) A person may use an individual’s persona for a commercial purpose during the individual’s lifetime if the person first obtains the written consent to use the individual’s persona from a person specified in section 2741.05 of the Revised Code. If an individual whose persona is at issue has died, a person may use the individual’s persona for a commercial purpose if either of the following applies:
(1) The person first obtains the written consent to use the individual’s persona from a person specified in section 2741.05 of the Revised Code who owns the individual’s right of publicity.
(2) The name of the individual whose persona is used was the name of a business entity or a trade name at the time of the individual’s death.
(C) Subject to the terms of any agreement between a person specified in section 2741.05 of the Revised Code and a person to whom that person grants consent to use an individual’s right of publicity, a consent obtained before the death of an individual whose persona is at issue remains valid after the individual’s death.
(D) For purposes of this section:
(1) A use of an aspect of an individual’s persona in connection with any news, public affairs, sports broadcast, or account does not constitute a use for which consent is required under division (A) of this section.
(2) A use of an aspect of an individual’s persona in connection with any political campaign and in compliance with Title XXXV of the Revised Code does not constitute a use for which consent is required under division (A) of this section.
(E) The owners or employees of any medium used for advertising, including but not limited to, a newspaper, magazine, radio or television network or station, cable television system, billboard, transit ad, and global communications network, by whom any advertisement or solicitation in violation of this section is published or disseminated are not liable under this section or section 2741.07 of the Revised Code unless it is established that those owners or employees had knowledge of the unauthorized use of the persona as prohibited by this section.
It just isn’t fair. The 97% of cops give the good 3% a bad name.
This is very interesting.
Government officials should not retain individual privacy or related rights while they are acting as “the government”, conducting government business in someone’s private residence, which in this case amounts to an unwarranted intrusion. This is not akin to say, snapping their pictures while they are on a lunch break in a diner.It’s not even akin to using their images as invitees.
What’s next? That now-famous picture of a handful of FBI doofuses not blending in, and being used as funny memes all over?
The Zeal of the Censor (desribed as unimportant story by several of our trolls) has just claimed another victim: Agatha Christie, possibly the best selling author in history. It seems that some of her descriptions are insenstive.
“The newspaper [Daily Telegraph] reported the edits cut references to ethnicity, such as describing a character as black, Jewish or gypsy or a female character’s torso as “of black marble” and a judge’s “Indian temper”, and remove terms such as “Oriental” and the N-word. The word “natives” has also been replaced with the word “local”.”
https://www.breitbart.com/entertainment/2023/03/26/now-agatha-christie-gets-the-rewrite-treatment-to-spare-modern-sensitivities/
Soon, they will be rewriting Shakespeare and the Bible.
Google the Sheriffs office web page and read the reviews. They better hope these people are not on the jury because it appears the Public Servant agency is not getting much support. .
Wasn’t Afroman harmed by the perception that he was a criminal?
Weren’t those pictures images of public employees in a public setting?
ORIGINAL INTENT
________________
Naturalization Acts of 1790, 1795, 1798 and 1802 (four confirming iterations)
United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…
Bad Rap
Is “taunting” a legal concept?
The Adams County sheriff can’t identify a supposed “kidnapping victim”. If you can’t identify any possible victim (not even a John Doe), what probable cause existed to obtain a warrant for kidnapping? Reading the search warrant, the “kidnapping” part simply dangles there with no explanation whatsoever. Why was kidnapping included in the warrant?
The warrant states to use any “reasonable means” for the search. Is breaking in the door and breaking the surveillance camera system “reasonable”? Is it reasonable to expect the victim to pay for property damage caused by police actions? Is that level of firepower reasonable? Is it reasonable to disconnect the home video surveillance system so police actions aren’t recorded? Are camouflage outfits standard police issue or are they worn for show? Do the police expect to be entitled to “secrecy” as well as “qualified immunity” when executing a search warrant?
The lawsuit filed by law enforcement only serves to reenforce the opinions many people have that law enforcement isn’t being held accountable. “We have investigated ourselves and found ourselves flawless”.
Dear Prof Turley,
Making Lemon Pound cake out of [law enforcement] lemons is as Afro-American as Apple pie. It beats pounding sand .. . Snoop Dawg, my schnizzle, has built a career on it ‘walking down the street smokin’ indoh, sipping on gin & juice.’
*It’s not Afroman’s fault they “failed to turn up any evidence of criminal conduct.”
How wise was it for the officers to bring more attention to the meritless search. Now the judge that signed the warrant has some explaining to do. The Video showed one of the officers “confiscating” money. Some of it was returned and when Afroman proved there was more, they returned it with the excuse they miscounted.
These officers are giving Afroman a huge publicity boost (I never heard of him till today). I guarantee that privately he is thankful.
For all of you who don’t support the police, please NEVER call them. NEVER expect them to aid you if you are in a car wreck. NEVER expect them to testify if someone harms you. NEVER ask them to search for your stolen items or the thief who stole them. NEVER expect them to protect your children. Why should they since you don’t support them?
I am a huge supporter of police. We should also not come down hard on them for human mistakes.
I am also very against abusive policing (which actually is a part of supporting police), and defend the first amendment
These police were totally abusive in their search warrant (how can you kidnap a nobody?), search damage , stealing of money, and harassment by bogus lawsuit. When cops mess with the First Amendment they deserve no support.
Blue lives matter! (said seriously). And so does the Constitution.
Why? I pay taxes for police services, even if I’m not satisfied by the quality of service.
They are using public money to fund them. I will not call them if they use private funds.
Every cop in America takes an oath to defend and protect all of the people in his jurisdiction. Even people who do not support cops. Even people who publicly condemn cops. Even people who hate cops. Any cop who turns his back on his oath to protect and defend all of the people in his jurisdiction needs to find another line of work.
In my view, the video should, under the “use” or “public affairs” exception in the statute. Furthermore, it is likely that the police engaged in some misconduct when the police disabled or destroyed the homeowner’s video system unless the warrant specifically authorize that activity. That kind of destruction is, to me, a clear fifth amendment violation as a taking of property without just compensation.
Furthermore, I would like to see the affidavits and/or other evidence used to justify the “probable cause” for the issuance of a warrant. In Ohio, county court judges are part time and not necessarily the most experienced. It is an elective office, but the county courts have extremely limited jurisdiction. I am sure that the underlying information for the warrant will be the subject of motions in the litigation.
“the video should, under the “use” or “public affairs” exception in the statute.”
That concept does not mean what you think it means.
There is no such thing as the “fair use” of an individual’s image for the purpose of commercial gain.
There is an exception for news accounts, even for for-profit news services.
“There is an exception for news accounts . . .”
But not for commercial products, which is what he was selling.
First Amendment.
Oh really? Let’s say you have a home security camera, and some burglar comes into your home, and then you use the video, with the burglar’s likeness, for commercial gain–he does not have a claim against you.
In this particular case, there are clear First Amendment issues, and the commercial gain aspect doesn’t render those issues moot. The First Amendment doesn’t protect people who are reaping where they have not sown–it does protect people like Afroman who are leveraging an experience with police officers.
This is stupid. These police officers and sheriff deputies are complaining that they are being mocked, ridiculed, embarrassed publicly because they found nothing in Foreman’s home. Foreman had every right to profit from and use the video of these officers turned whining snowflakes. Also Turley left out one important piece of information. Ohio is a one party consent state. Meaning he can do whatever he wants with the video which was created in his own private home by his own private security system. The officers have no case.
These are public officials being filmed doing their jobs. There is no expectation of privacy in this case. The 1st amendment protects Foreman’s use of the video to mock the officers and profit from it. Also if they did find something it’s guaranteed the officers would have used their video footage to embarrass Foreman showing him in handcuffs and news organizations use the footage to portray the police and sheriff department’s success to the public. Foreman did what they would have done and he had his as much a right as they did.
These officers are upset that they are being laughed at and Foreman is making money from their failure to find anything.
Svelaz – good morning! For once I agree with you, haha (see my comments below). BTW, on another thread I asked you to provide some support for your position that free speech includes the right to prevent others from speaking. You then disappeared from here for a couple days. I’m not suggesting the two are related, but bottom line, you didn’t respond. Care to now? If you do, please see my prefatory remarks first.
Yours,
Uncle Henry
I agree. In addition, they are being mocked (rightfully so) while destroying and on PRIVATE PROPERTY! Yest, they should repair his gate, door and ANY other damage done to his property! I generally support the police, but these people are Idiots. Not JUST Idiots, but Malicious Idiots!
Wow. Hell really has frozen over because I agree with every single thing you said.
“This” is not stupid, and there are no whining snowflakes. The police officers object to being used by a person they believe is a criminal. They have nothing to be ashamed of, as they were doing their job.
The question is whether one believes in the use of the video commercially. I think yes based on what I know. It was a pretty generic tape and wasn’t altered or highlighted.
Your attitude Svelaz is low-brow.
Money was seized, and the amount reported seized was greater than what the police reported to their supervisors. This is theft, and the police should be ashamed of this. I hesitate to use a term like “snowflakes”, but the police are entirely unreasonable in objecting to the video.
Guy, I wouldn’t jump to conclusions, but the problem is known, and if something illegal was done, prosecute.
If someone were to take a picture of you and your loved ones in embarrassing positions, would you object to the video being used for commercial purposes? Example: Look at these nuts. Let’s use the video in an advertisement promoting Planter’s Pea Nuts.
I’m not entering other people’s houses under color of law. If you take on that role, you can’t hide behind privacy concerns.
In other words, you would not like a video of you commercialized. I say that because you ducked the question.
I already stated my position, but you don’t seem to be dealing with it. Do you understand what I said?
By the way, they are employed by the city or state. They didn’t decide to enter his house. You need to better define what your position is.
If someone posted a video of me looking at poundcake, I wouldn’t mind. If someone posted a video of me looking for drugs in someone’s pockets with a silly track about not being able to conceal a large amount of drugs, I wouldn’t mind. You said yourself that you saw nothing shameful in the video. If that’s true, why would the police object to its publication?
If someone posted a video of me related to a story of me taking money and placing a false lower report of what I took, I’d mind that. If someone posted damage from a forced entry to my house that my organization refused to repair, and the larger story made the forced entry seem unreasonable, I’d mind that.
Whether the video is commercialized or not wouldn’t matter at all to me. I’ve seen this case covered by various lawyers, and their consensus is that this commercialization doesn’t matter under Ohio law because of a news exception to the statute the police cite.
Whether the subjects mind or not doesn’t matter legally. Various federal circuit courts have found that police don’t have a reasonable expectation of privacy during the performance of their duties.
I’m a state employee, and things got posted about me on the internet that I thought were hurtful. The site they appeared on was a for-profit site. I didn’t like it, but didn’t have a legitimate grievance against the poster. Bad press is part of the job for anyone in the public sector, and particularly for the police.
You argue that executing the warrant wasn’t optional to them. Turley calls the search “a baseless and excessive use of force”, and Turley’s assessment seems reasonable. If officers go along with this, and end up with a bit of public humiliation, they got off easy.
It is not about you, so it is not up to you to decide for others their preferences. You are right. I believe the video is generic and not highlighted to be offensive. I leave it up to those involved to make their own decisions about how they feel. I don’t think they like the commercialization of the video that includes them, but based on what I know, I don’t think the law will be on their side. I’m not sure what you are arguing about.
You seem to relish humiliation. I don’t.
ATS Writes: “S. Meyer has a chip on his shoulder.”
ATS, what is your purpose in life? Apparently nothing. You write replies using an address knowing your response will be deleted from the blog but not the email. Why?
This really isn’t hard once you boil it all down. Planters can’t use a random picture of me to hawk its nuts because Planter’s is just plucking a photo completely unrelated to peanuts and Planters and using it. Afroman had an encounter with these public figures and thus owns the story and how he wants to depict it, and the profit motive is therefore not relevant.. Where it would get dicey is if someone other than Afroman (say a website like Audit the Audit) hawked a still from the video on a t-shirt. I think it still would be ok–as there is a message (other than merely hawking peanuts or what have you.)
SPO, I didn’t say I disagreed with Afroman’s right to use the video if there are no other considerations that weren’t mentioned. The police have their own reasons for not liking it.
By the way, looking only at the theatrical and musical points, I thought the video was good.
I believe it is unfair to single out these officers who were carrying out their orders under a valid warrant.
That’s exactly why it’s not unfair. They were in the middle of a government operation, which a reasonable viewer would recognize. So what’s the problem? Overly-sensitive law enforcement officers? Gimme a break.
When the people are afraid of their government, we have tyranny. When the government is afraid of the people, we have liberty.
I used to give the police the benefit of the doubt.
Today however, The people at the top have so abused their power, strict scrutiny must be empolyed to see of acts like this, are taken, due to the examples we have seen of the the last 7 years.
The FBI counter intel (not criminal) investigation into Trump, lied on warrants, and used spies to infiltrate Trumps campaign. That is an aggreesious abuse of power, that has resulted in zero consequences for the the FBI law breakers.
DA Bragg’s pretzel logic in convening a Grand Jury, then leaking the juicy parts of testimony. The Jan 6 made for TV piece of fiction, being lauded, by the media, despite all the half truths, lies and forging of evidence, leads by example for the Police.
The list of abuses is getting close to being endless.
10 years ago I would have told Afroman to suck it up and dont do stuff to make the cops suspicious.
But today, law enforcement and the Judiciary, have both exhibited their willingness to look the the other way when they break the law.
These cops, prosecutors, and the Judge that signed the warrant need to have their actions investigated.
Well said iowan2. The Fourth Amendment gives a remedy for unlawful searches which turn up evidence of criminal conduct: suppression of that evidence. But what is a citizen’s remedy for an unlawful search that turns up no such evidence, as in this case? There should be a remedy at least in the arena of public opinion, and the officers are now trying to take even that remedy away.
In the above, I’m not suggesting this raid is unlawful. I don’t have enough information to know one way or another. Prof. Turley says the warrant was valid but unless that’s been litigated we really don’t know that. And that’s the point: when no evidence is found, there is no suppression hearing to litigate the validity of the search, including that of the warrant. So the only remedy is in the court of public opinion.
Iowan nailed it! The actions of the FBI and the intelligence agencies of our federal government have turned conservatives against believing police actions on their face. Of course the lunatic left, like Svelaz, hate all cops EXCEPT the feds, which is rather curious.
“… his wife was home and filmed the raid. Security cameras also captured footage.”
Keywords: “filmed” and “footage”
Please note that this is a literary critique, not a legal analysis.
While elsewhere using proper vocabulary relevant to the age of digital videography, the words “filmed” and “footage” are anachronistic in the extreme, useful when editing a Jean Harlow movie in 1931 but hardly relevant here in our contemporary era.
I’ve pointed this out a number of times in the past, and while it’s a minor criticism when Turley is wearing his lawyer’s hat, it elevates to a serious criticism when Turley is wearing his WRITER’S hat, considering how many years he’s been refusing to update his vocabulary, and considering how this piece shows evidence that he DOES, in fact, understand the difference between film and video RECORDING, whether digital or analog.
By way of music criticism: The song blows chunks. Hard to believe this guy makes a living in music in ANY genre. That sounded like country & western, without the cowboy hat.
I was going to ask if she used 8 or 16 millimeter stock, but you beat me to it.
I would upvote your comment, but Turley’s crapsite has decided that it doesn’t want to recognize me when I upvote replies or comments, even though it DOES recognize me when I post comments. The operation of the website is as defective as Turley’s vocabulary regarding film vs video recording.
Ohio has the most ruthless racist police anywhere. “On June 27, 2022, at approximately 12:30 a.m., Akron, Ohio, police officers killed Jayland Walker, a 25-year-old American black man from Akron. Following a traffic stop and car chase, officers pursued on foot and fired more than 90 times at Walker. Autopsy results showed that Walker’s body was hit by 46 bullets.” Wikipedia
Why would a police officer wear a camo pseudo-military uniform for a “raid” into a suburban home? Was he going to conceal himself amongst the potted plants? This militarization of police departments, even and perhaps especially amongst the small town boobery, has got to stop. I’m sure if they had come up with a big score instead of an empty bag they would be only too happy to be publicized in their cool tactical gear and body armor. Now they look more like Keystone Cops than operators. Call it revenge if you wish, but it appears that exposure, mockery and humiliation are the only form of accountability that is ever likely to occur. Our society needs more of it.