A photographer and a wire service have been sued by the couple who gained national attention after pulling guns on Black Lives Matter (BLM) protesters this summer, alleging improper enrichment by the use of their image without permission.
Mark McCloskey, 63, and Patricia McCloskey, 61, filed the complaint in St. Louis Circuit Court against photographer Bill Greenblatt, UPI and print-on-demand platform Redbubble Inc.
“They're claiming intentional infliction of emotional distress because someone is using a picture that they were perfectly fine using themselves,” Saint Louis University School of Law professor Yvette Joy Liebesman said. “They appeared as speakers for the Republican National Convention based solely on this picture and this episode. They've been exploiting it.”
As previously reported in the St. Louis Record, the McCloskeys were subjects of national media coverage in the wake of the George Floyd controversy for brandishing firearms in front of their Central West End home. They were standing their ground as the trespassing protesters had marched toward Mayor Lyda Krewson’s home.
“It's a private street but that doesn't mean they own the street,” Liebesman said. “The trustees of the private street have refused to press charges against the people walking through the street to get to Mayor Krewson’s.”
Under Missouri law, first-degree trespassing is a class B misdemeanor.
“The person who takes the picture owns the copyright but the McCloskeys are claiming they should own the copyright because supposedly the photographer was trespassing when he took the photograph,” Liebesman said in an interview. “It’s a stretch to transfer the copyright to the people in the photograph because of trespassing.”
A right of publicity claim is typically enlisted for publicity that’s garnered from an activity other than the original vehicle of fame.
“It's not right of publicity because they're just showing what [the McCloskeys] actually did,” Liebesman added.
The couple used the UPI photo as part of a personal greeting card, according to media reports, and are now asking the Court to award them ownership of the photo and any other photos taken that day.
“They want ownership of the photo so that they can be the ones to exploit the picture but it's out there and the photographer has licensed it,” Liebesman said. “It's already a meme and the McCloskeys want ownership so they can sue everybody who's using it.”
Both Mark and Patricia McCloskey are personal injury attorneys who operate the McCloskey Law Center on Lindell Blvd.
“We have a very strong freedom of the press in this country and the McCloskeys would have to show that the taking of the picture was less important than the fact that McCloskey came out of their house and pointed guns at people,” Liebesman said.