The next holiday-related law case comes from Massachusetts Supreme Judicial Court. The story leading up to the court’s 1966 opinion begins with a Boston Globe series of “Globe Santa” articles designed to “raise money and gifts” for needy families.[1]
Marie Brauer consented to be interviewed by the Globe pertaining to the “unfortunate circumstances” that she and her son, Michael, found themselves with the holidays approaching, with the proviso that their actual names were not to be used. For the article, Marie also allowed a Globe representative to take a posed photograph of Michael sitting and bent over “in apparent dejection.” After the story appeared in the paper, some friends, neighbors and relatives apparently recognized the boy in the newspaper photograph. And that was that. Or so they thought.
A couple of years later, the newspaper published the photograph alongside an article about proposed legislation over the caption, “Help for the Mentally Retarded.” Having previously worked in the newspaper field, I am familiar with circumstances in which a need arises for what is called in the business a “stock” photo. Sometimes there is very little time between the realization that a stock photo is needed to accompany an article and the deadline for the publication. The photo that previously ran with the “Globe Santa” series appeared apparently to fit what the Globe envisioned to accompany its subsequent article.
According to the Globe, the boy’s features were obscured, so nothing defamatory could be relayed about him through the photograph. However, there was apparently evidence that friends, relatives, and former neighbors who had recognized the original photograph likewise recognized that the same photograph of the boy had been used in the second publication.
The mother sued, both on her behalf and on behalf of her son, The lower court had dismissed the complaint, but the reviewing court revived Michael’s defamation claim. According to the opinion, the newspaper did not challenge the argument that being accused of being mentally challenged when one is not would be considered defamatory, in other words, it was something that would tend to lower one’s reputation in the community. Because at least some individuals indicated that they recognized the child as the individual depicted in the photograph, the court reasoned, the article could reasonably be interpreted as insinuating that Michael was mentally challenged, when he was not. Therefore, the court held that the complaint alleged a supportable claim for defamation on behalf of the boy.
It’s worth noting that though the court held the claim could proceed, its value may have been limited. The boy’s actual damages arising from the defamation would have been intended to compensate him for the damage to his reputation, but as only a limited community of individuals recognized him in the photograph, his reputation could only have been damaged with respect to that limited number of persons. In addition, his reputation could only have been damaged in the minds of those people who recognized him in the photograph but who did not know him or his family well enough to know that he was not, in fact, mentally challenged. This may have been a very small universe of individuals. That said, he would have been able to seek, at a minimum, nominal damages, and the newspaper faced the prospect of continued expense defending the case.
The complaint also alleged a claim for invasion of privacy, which did not fare as well. Invasion of privacy as a legal claim was just being recognized in some states at the time, and its exact contours were still being developed. In this case, the court did not need to decide whether the claim should be recognized in Massachusetts, because even if it were to do so, the court would not apply it under those circumstances. Claims for invasion of privacy tend to provide redress for someone who has been held out to the general public in “a false light,” meaning that that they were represented as something that they were not. The court held that the facts did not show, as required, that the Globe’s use of the photograph was sufficient “to familiarize the public” – as opposed to a limited group of friends, relatives and former neighbors – with “the name, likeness, or other means of identifying” Michael. The court also approved dismissal of Marie’s claims for invasion of privacy for the additional reason that where invasion of privacy claims were recognized, the right to bring a claim was generally limited to the individual whose name or likeness was used.
In addition, the court quickly disposed of a claim for breach of contract that had been asserted on behalf of Michael. The court saw no authority for holding that there was an implied contract arising out of what it characterized as merely a limitation on permission. Presumably, the newspaper did not make any payment for the use of the original photograph; otherwise, there likely would have been a different outcome on the contract claim, because then there would have been a bargained-for exchange.
In the words of one of the most enduringly popular Christmas films, the court’s decision to let the defamation claim move forward provides a cautionary tale for journalists or anyone else who uses public photographs with someone else’s permission: Consent for the use of a photograph is not necessarily a “gift that keeps on giving.” Those who obtain images with the consent of others and who seek to use them would do well to ensure that the permission granted can be proven to extend to the subsequent use. It is also helpful to make sure that the additional use is not something that will cause significant offense to the subject of the image.
Whether this whole scenario would have been different in an era of AI, we’ll never know. But it’s entirely possible that AI could snatch from somewhere in cyberspace a photograph that had been published with limited permission and that the image could unwittingly be used in a completely different context. So perhaps the more things change, the more they really do stay the same.
[1] Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E.2d 736 (1966).
Original content in this post © April Rockstead Barker, 2026. All rights reserved.
The comments on these pages are the general opinions of the author, do not constitute legal advice and do not create an attorney-client relationship.
