By Richard Rothfelder, Rothfelder and Falick.

Insider sent me a couple articles about lawsuits brought against advertisers who had displayed defamatory or misappropriated advertisements on billboards. In a New Hampshire case, the owner of a mortgage company who used electronic billboards (as well as the radio, television, and internet) to wrongly accuse three businessmen of fraud, drug dealing, and extortion was adjudged liable for $274.5 million in defamation damages. Filmmaker Wood Allen likewise filed a $10 million lawsuit against American Apparel, Inc. over its unauthorized billboard advertising depicting Allen in various dress without his permission.  The case was settled for $5 million.

Usually it’s the message that is the basis of the lawsuit, but sometimes the messenger get sued too. I handled a case a number of years ago for a billboard company (which we all know, but will remain nameless), in which an unscrupulous advertiser effectively stole a photograph of young ladies modeling evening wear. The advertiser, which happened to be a “gentlemen’s club,” gave the misappropriated photograph to the unsuspecting billboard salesman as the basic artwork for an advertisement displayed on the billboard for the club. You can guess what happened next: after the billboard was displayed, and the young ladies (and their spouses or parents) saw themselves associated with the advertisement for the gentlemen’s club, they sued for a laundry list of wrongs, including defamation, invasion of privacy, intentional infliction of emotional distress, and misappropriation of information. (Normally, I might provide a photograph of the sign to accompany this article, but I dare not throw more fuel on the fire) More problematic for my client, the lawsuit was against both the gentlemen’s club and the billboard company.

The first thing we did was convince the client to remove the offending copy. The next thing was to sue the advertiser in a cross action, and otherwise point the finger at this fraud who tricked the billboard salesman as well as the plaintiffs. Of course, the gentlemen’s club soon proved to be insolvent, so the natural target with the deep pocket was the co-defendant billboard company.

Under the circumstances, I believe the case ended on an acceptable if not happy note, with my client avoiding a jury trial and paying the plaintiffs a five figure settlement.  However, in a case where it seemed the facts couldn’t get any worse, after the settlement was completed and lawsuit dismissed, I got an email immediately followed by a phone call from opposing counsel. Seems he was driving and saw, to his astonishment, that the copy depicting his clients in the actionable manner was once again displayed on the billboard. It turns out the client had never disposed of the old vinyl with the images, and instead occasionally used it as a backing behind live advertising displays. And, while rotating copy on the billboard, the old vinyl happened to be exposed for a few minutes, or at least long enough for the plaintiffs’ attorney to snap of photo of it. Fortunately, by then the attorney and I had acquired some rapport, and I was able to resolve the new wrinkle with a mere promise to immediately remove and burn the vinyl.

There are several takeaways from these types of stories.

1. Be extremely careful when dealing with advertisers on the artwork displayed on your billboards.
2. Insist on documentation establishing that the artwork proposed and furnished by the advertiser is legitimate and not misappropriated, preferably even copyrighted.
3. Use your discretion and common sense on what advertisements to display on your billboards, utilizing some standard of decency of your community.
4. Incorporate in your advertising contract a provision that requires the advertiser to indemnify and hold you completely harmless in your display of his advertisement on your billboard.
5. To make such an indemnification requirement meaningful, in those situations you may need indemnification by a potentially insolvent advertiser, require a bond or deposit as a condition for display of the questionable copy.
6. Never keep around the shop and use as a backing for live copy any old vinyls with offensive copy.

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