Wednesday, January 21, 2015

DGI Crosses More Lines

With everything that is going on at Downtown Greensboro Incorporated one might think there couldn't be more but nothing could be farther from the truth. In March of 2010, a Mr Larry Owens, then an employee of the Budd Group, complained that DGI was illegally using his likeness on their website and Clean and Green Team trucks to promote Downtown Greensboro, DGI and downtown Greensboro businesses.

While it is true that non commercial use of one's image without permission is legal, to use anyone's image for commercial reasons without his or her permission is illegal in North Carolina.

Mr Owens left his job with the Budd Group on September 12, 2014. DGI and The Budd Group continued to use his likeness for no less than 3 more weeks despite the fact that neither had ever before secured permission to do so.

On October 3, 2014 Larry sent DGI the following e-mail:

"To:,, sherrie@downtowngreensboro.netG
Sent: 10/3/2014 10:16:51 A.M. Eastern Daylight Time
Subj: Consultant Fee / Image Fee for Larry Owens
Good Morning Everyone,
I would like to say thank you for everyone's understanding in my leaving The Budd Group and Downtown Greensboro.  With that being said I need to address the following.
Also I was in the Downtown Area on Wednesday of this week, and I see my image is still being used on the Budd/DGI Truck without my permission.  I would like to discuss a compensation fee for the continued use of it in advertising for Budd Group and DGI.
As Budd wanted to use me in the consultant role, I propose the following rates, $27.00 an hour or 1,500.00 weekly or 6,048.00 monthly.  This is based off exposure of eight hours a day, seven days a week.  I have been contacted by Donna today to answer questions reference supplies, my fee for consulting will be 75.00 an hour minimum of four hours.
Due at this time for three weeks of unauthorized use of image is $4,500.00 flat fee.
In Flake v. Greensboro News, 212 N.C. 780 (1938), the North Carolina Supreme Court recognized a cause of action for the unauthorized use of one's photograph or likeness in connection with an advertisement or other commercial enterprise. In Flake, the plaintiff brought suit on the basis of an advertisement published in a local newspaper that featured a picture of her dressed in a bathing suit. She showed evidence that the photograph was published in this instance without her consent. The court held that the unauthorized use of a plaintiff's photograph in connection with an advertisement or other commercial enterprise would give rise to a cause of action, but that absent a showing of special damages, only nominal and injunctive relief could be granted.
It is not clear from the opinion in Flake whether the court treats the right of publicity as a property or privacy-based right. The court explicitly did not reach the question of whether First Amendment or newsworthiness defenses might apply to such a cause of action in other contexts.
In Barr v. Southern Bell Tel. and Tel. Co., 13 N.C. App. 388 (1972), a telephone company published a phone directory including an advertisement for the plaintiff's rug cleaning company; however, although the telephone company included the plaintiff's name, it used the likeness of an unrelated third party in connection with the plaintiff's name. The plaintiff had signed an agreement that allowed for the commercial use of his image; however, the appellate court held that the publication of plaintiff's name in connection with the mistaken image exceeded the scope of this consent, and might justify a finding of invasion of privacy. The decision implies that consent is a defense, but that if a publication exceeds the scope of consent, that the publication may be actionable.
A right of publicity claim in North Carolina is likey subject to the state's general three-year statute of limitations for personal injury claims. N.C. Gen. Stat. § 1-52(16).
Images of People
If you are using photos with people in them for advertising, you need their permission. People have a right to profit, and exclude someone else from profiting on their photograph or likeness. This right continues after their death and is given to their heirs."

On October 6, 2014, DGI was served with a second Cease and Desist along with a bill for the use of his likeness. He also e-mailed the following:,,,

I think those in the know will recognize those e-mail addresses. Again, Downtown Greensboro Incorporated has shown itself to be incapable of managing its own affairs. It's time Mr Owens was paid for the use of his image and those running DGI faced the consequences of their negligence.

Mr Owens, should you be a reader or should someone point you to this I highly recommend you find a lawyer in your hometown who would like to run the bill up very high so that both of you might make out well.