An Italian-restaurant owner - who's in the soup for displaying a picture of him with Chelsea Clinton outside his Village eatery - said yesterday that he won't remove the photo.Posting photographs like this is a longstanding restaurant practice. Are we really supposed to believe it's suddenly a tort?
"The picture stays - unless I hear from Chelsea directly," said Osso Buco owner Nino Selimaj.
Selimaj received a letter from former President Bill Clinton's lawyer, Douglas J. Band, this week, asking the restaurateur to remove the photo from an outside menu case because Chelsea, "a private citizen," never gave permission to have it displayed there.
The letter was stamped on top with a gold presidential seal and the letterhead Office of William Jefferson Clinton....
Selimaj said if he takes the photo down, it would set a bad precedent for all the pictures he has taken with bold-face names.
"We have Derek Jeter, we have Regis Philbin, we have Rudolph Giuliani, Danny Glover, Mariah Carey [and] 'Sopranos' [castmates]," said Selimaj.
The legal letter has now joined the photo in the display case.Ha ha. I'll have to stop by and look at that. Let's all eat at Nino's restaurants and show some support for the small businessman whom a former President has seen fit to harass with a rude letter on stationery with the presidential seal.
Aren't there some limits to the proper use of the seal? I note that the "seal" on the stationery might not count as the seal, since it is only the central part of what I think is the full seal. Nevertheless, I question Clinton's use of the seal -- or what seems to be the seal -- for private interests of this kind. Here's the federal criminal statute about misusing the presidential seal. Am I accusing Clinton of a crime? I am simply reserving the right to express any and all opinions about the law that may be available to me.
ADDED: Eugene Volokh weighs in:
The restaurant owner's actions likely violate Chelsea Clinton's "right of publicity." This right is recognized in one or another form by most states, but for our purposes the specific law is N.Y. Civil Rights Law § 51, which gives any person the right to sue over unauthorized use of her "name, portrait, picture or voice ... used within this state for advertising purposes or for the purposes of trade without ... written consent." Here, it looks like the photo is being used for promoting the restaurant to its customers, which makes it "purposes of trade" or perhaps even "advertising purposes."There are an awful lot of restaurants who do this. Are they all subject to tort suits? It's not as if the restaurant is using her in an ad. It's the decor of the restaurant. It seems to me that if someone eats in a restaurant that follows a tradition of posting photos of celebrities who ate in the restaurant and posed with the owner and then one goes ahead and poses for a photograph with the owner, one implies consent to have the photo hung on the wall along with the other photos pursuant to the tradition.
But Eugene notes that "New York law -- unlike the law in many other states -- provides that consent to use one's name or likeness for advertising or trade must be given in writing." I'd argue that this is a reason to narrowly construe what counts as a use for "purposes of trade."
Eugene also notes that there is a 1 year statute of limitations. The picture has been there for 5 years, according to the press reports.
Eugene also thinks that "failing to remove Chelsea's picture is pretty rude," but it's important to note that Chelsea herself has not said a word to the Selimaj. He got a letter written on behalf of "President Clinton," and he has said he'll take the picture down if he hears from her.
What is rude is posing for a picture under those circumstances and then not expressing your objection in a friendly way. And what's really sickening is to intimidate a small business owner with an ugly letter from a man who is parading pseudo-governmental authority about a private legal matter on presidential stationery.
I certainly think, however, that Selimaj should respond to a cordial request cordially and, as a matter of good business and ordinary manners, shouldn't want to do something to one of his guests that the guest perceives as abusive.