During his NBA playing days, Shaquille O’Neal frequently faced the “hack a Shaq” strategy late in games. O’Neal was a pretty awful free throw shooter, so in tight games defenders would foul him before he could get a shot off. This strategy was based on the reasonable assumption that it was better to have Shaq shoot 15 feet away from the hoop than throw down a dunk.
Now, a plaintiff named Jahmel Binion is adopting a slight variation on the theme, in what may be called “Sue a Shaq.” Binion recently filed a misappropriation suit against O’Neal arising from a tweet that Shaq shared with his 8.6 million Twitter followers (this is slightly more than I have – by nearly 8.6 million).
Here are the facts, as recounted by the Florida federal court handling the suit:
In April of 2014, Defendant Shaquille O'Neal ("O'Neal") posted a picture of Plaintiff Jahmel Binion ("Binion") on his Instagram and Twitter accounts. This was no ordinary picture. Plaintiff Binion suffers from ectodermal dysplasia. According to Binion's operative complaint, this has left him with a "disfigured appearance" due to "abnormalities in the hair, nails, sweat glands, and teeth." O'Neal altered Binion's photograph by adding a side-by-side shot of O'Neal himself, contorting his facial features and "attempting to make a similar face." The picture bore a caption: "SMILE PEOPLE."
The tweet apparently did not make Binion smile. He filed a multi count complaint, which included a claim for infliction of emotional distress and a claim for misappropriation of his image. O’Neal asked the court to dismiss the complaint. Unfortunately for the big man, his litigation skills are apparently not much better that his foul shooting. The court denied the motion.
O’Neal claimed that the issue of whether his conduct was “extreme and outrageous” – the test for determining if a defendant is liable for infliction of emotional distress – was one for the court to decide. O’Neal asked the judge to rule that his conduct was neither extreme nor outrageous as a matter of law. The court disagreed. It found that the question whether the conduct constituted infliction of emotional distress was a fact issue for the jury.
O’Neal also argued that Binion failed to state a claim for misappropriation because Binion had no commercial interest in his identity. But in the court’s view, that fact, even if true, wasn’t the issue. O’Neal misappropriated Binion’s image by using it without authorization, on O’Neal’s Twitter account, for O’Neal’s commercial purposes. Those facts were sufficient to state a claim.
The lesson here is to be careful about using anyone’s photo without permission. Just because a photo appears online doesn’t make it fair game. The site where the photo is displayed (like Facebook for example) has a license to use the photo. But that license doesn’t transfer to anyone else. And assuming that you can use the photo may get you whistled!