Update on the Lawsuit Against Benjamin Ham for Photographing Private Property

As reported in my December 4, 2007, blog entry, the College of Charleston Foundation (“Foundation”) sued Benjamin Ham for trespass, invasion of privacy, and conversion for his taking and a selling photograph of the Foundation’s property, known as the “Dixie Plantation.” The photo at issue is called “Plantation Road” is shown here (with permission).

Background
The Foundation alleges that Ham passed through locked gates and ignored the “no trespassing signs” to enter its property without permission to take photographs. Dixie Plantation was left to the Foundation pursuant to a gift from a will that included certain restrictions on the property’s use for commercial purposes. The Foundation believed that Ham’s selling of his copies of the “Plantation Road” photograph violated that restriction and thus sued Ham after he refused to stop.

The Court’s Order
The matter now has settled out-of-court at a mediation, but not before the judge issued some rulings that are important to photographers. The Order may be viewed here.

The Foundation’s Motion to Remand
First, the Foundation asked the judge to remand the case back to state court from federal court. Only federal courts have “jurisdiction” (authority) to hear cases related to copyright. The issue is much more complex than is addressed here, but some of the court’s analysis is instructive. Specifically, the Foundation’s claims of conversion, trespass, and violation of the right of privacy (all state court claims) don’t appear on their face to be related to copyright. So, generally, the Foundation would be allowed to keep the case in a state court. But Ham argued that the state law claims were “subsumed” by federal law of copyright.

As part of the court’s analysis, it looked closely at the Foundation’s claim of conversion. The court defined conversion as “the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of the condition or the exclusion of the owner’s rights. Conversion may arise by some illegal use or misuse, or by illegal detention of another’s personal property.” After reviewing the case law on the subject, the court stated:

Federal courts, then, have generally found that when a conversion claim encroaches upon the subject matter covered under federal copyright law, the claim is preempted and should be brought as a copyright claim. A conversion cause of action only passes the extra element test where there was actually physical property converted, or some other circumstance . . . which makes the conversion cause of action fundamentally distinct from the kind of claim that could be brought under the Copyright Act. . . .

[T]he court simply cannot see how the gravamen of the conversion claim is not simply this: that Defendant unlawfully photographed an image belonging to Plaintiff and is now commercially distributing it. Plaintiff has not asserted that Defendant took any tangible object, so the only possible property of Plaintiff’s that Defendant is alleged to have converted is the image of “Plantation Road.”Disputes over ownership, use, or distribution of photographs and images are properly the realm of federal copyright law.

Accordingly, the court held that plaintiff’s state claims are preempted by copyright law so that the parties’ dispute was properly before the federal court. Thus, despite the concern of some (see my May 9, 2006, blog entry for more information), this court and other courts have found that taking a photograph of a property does not comprise the legal action of “conversion.”

Ham’s Motion to Dismiss
The Foundation’s Conversion Claim
The court then turned to Ham’s motion to dismiss. Because of the above finding, the court dismissed the Foundation’s claim of conversion because it is preempted by federal copyright law.

The Foundation’s Right of Privacy Claim
Ham also argued that the Foundation’s claim of invasion of privacy should be dismissed. The court found that most jurisdictions to have considered the issue, though, have held that corporations may not bring suit for invasion of privacy because the plaintiff is a corporation and not a living individual/human, it has no action for invasion of privacy.

However, the court did not need to rule on the issue of whether South Carolina law allows a corporate plaintiff to recover in tort for invasion of privacy because the Foundation failed to allege the 4th element necessary for invasion of privacy: (1) publicizing, (2) absent any waiver or privilege, (3) private matters in which the public has no legitimate concern, (4) so as to bring shame or humiliation to a person of ordinary sensibilities. The court explained:


The court can see no way in which the publication of a photo capturing a beautiful image like “Plantation Road” in any way “bring[s] shame or humiliation to a person of ordinary sensibilities.” This is especially true in light of the fact that Defendant does not even identify Dixie Plantation as the setting of “Plantation Road.”

Accordingly, the court dismissed the Foundation’s claim for invasion of privacy.

The Foundation’s Trespass Claim
Because Ham physically invaded Dixie Plantation without permission to take photographs, the court did not dismiss the trespass claim against Ham. Significantly, the court noted that if Ham had somehow taken the “Plantation Road” photograph from off the property with some sort of high-magnification equipment, the Foundation would have no cause of action for trespass.

The court closely compared this matter to the Fourth Circuit’s decision in Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999). The Food Lion case involved news reporters from the ABC program PrimeTime Live who obtained jobs at the grocery store chain at stores in North Carolina and South Carolina under fraudulent pretenses, and then proceeded to surreptitiously film Food Lion’s unsavory food handling practices. When the program aired, Food Lion sued the program and its producers, and at trial, obtained a guilty verdict against the defendants on a charge of trespass, among other charges. Food Lion alleged no physical damages, but sought compensation for “loss of good will, lost sales and profits, and diminished stock value.”

However, before the damages phase of the trial went before the jury, the trial court instructed the jury that the plaintiff could not recover damages related to these intangible losses on the trespass claim. The court, however, allowed the claim of trespass to go forward and the jury awarded Food Lion nominal damages of $1.00 >.

The Fourth Circuit upheld the ruling of the trial court and the jury’s verdict with regard to the trespass claim. The inquiry mainly centered around the issue of whether Food Lion somehow consented to have the “employees” videotape the store’s food handling practices by hiring them and allowing them into the store. The court was untroubled by, and indeed never even raised, the issue of whether Food Lion should be barred from its trespass action because the trespass caused no physical harm.

In a separate fraud claim, the Food Lion jury was limited to awarding Food Lion damages based on actual tangible damages, and awarded the plaintiff a mere $1,400. However, the jury then went on to award the plaintiff over $5.5 million in punitive damages on the same claim.

Based on the Food Lion case, the Ham court found that if it is a trespass for a photographer to take photographs without the owner of private property’s consent when the owner has at least consented to have the photographer on the property, the court simply cannot see how it would not also be trespass in a similar situation where the difference is that the owner has not even consented to allow the photographer on the property. Furthermore, the issue of physical versus intangible harm does not represent a per se requirement of a holding of trespass, but rather goes to the issue of harm. While the Foundation had not alleged any physical or tangible harm from Ham’s actions, the Foundation may have been awarded punitive damages by a jury. Thus, the court would have allowed the Foundation’s claim of trespass to go to the jury.

The Settlement
After the ruling by the court, trespass was the only surviving claim of the Foundation. The parties then mediated the dispute. As with the vast majority of lawsuits, the parties reached a compromise at mediation.

Importantly, the photo, “Plantation Road,” is still for sale on the Martin Gallery’s website. But, as is usual, the terms of the settlement agreement are confidential.

Of significance, it is reported that despite the Foundation’s position that the property could not be used for “commercial purposes,” parts of the movie, “The Patriot” were filmed there and other photographs have been taken of the property. Unfortunately, many of the photographers identified during discovery as having taken photos while on the Foundation’s property removed their photos after getting “letters of intent” from the Foundation. For example, one company posted the following note on its website: “We have a photo of some oak trees at Dixie Plantation, but the College of Charleston Foundation won’t allow us to display it.” But Ham was willing to fight for photographer’s rights (at great expense).

Conclusion
Ham says of his experience, “I am glad the process is over and we were able to reach an agreement that I think was beneficial to both parties. The legal costs were significant and I will have to bear the costs since I had no insurance for such legal issues. I have no regrets in having done so and I hope it will clarify some of these issues.”

Ham has done much for photographers. If you’d like to support his efforts, purchase one of his wonderful prints from his website.

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