There is an interesting controversy brewing between NBC and the Trump campaign over a parody using the image of NBC News senior Capitol Hill correspondent Garrett Haake. The network has asked the campaign to take down the video that attacks Trump’s political opponents while using a voiceover that sounds like Haake. While  Trump senior adviser Chris LaCivita has pointed out that this is parody “to keep @NBCNews Lawyers off my a**,” it may not be enough. NBC could have a case under torts.

The video was still available on social media this morning after being shared by LaCivita. It is not clear who made the video, however.

NBC News has demanded that Donald Trump’s campaign remove a video which opens with a real news clip of NBC News senior Capitol Hill correspondent Garrett Haake previewing the presidential debate. However, it then cuts away to a voiceover sounding like Haake that attacks Trump’s opponents. The voiceover says  “This is Ron DeSantis: An establishment RINO that wears insoles in order to look taller,” the voiceover says. “ It adds: And this is Nikki Haley… Nobody really gives a shit about Nikki Haley.” It also attacks the other candidates.

LaCivita tweets “Now this is reporting ! Watch till the end! @NBCNews”

LaCivita, later tweeted: “Now this is reporting!” Shortly after posting the video, LaCivita followed up: “To keep @NBCNews Lawyers off my ass, please note…. THIS IS A PARODY!”

The clip does end with a Trump campaign song and pitch — reinforcing the parody acknowledgment.

If the videotape was done by (or at the behest of the Trump campaign), it could find itself in a torts lawsuit. If it is a reposting alone, there could be greater defenses in sharing a video that has drawn attention in the campaign, though NBC could still claim that the Trump campaign is replicating the violations.

The most obvious tort is false light.

Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.

For example, in Gill v. Curtis Publ’g Co., 239 P.2d 630 (Cal. 1952), the court considered a “Ladies Home Journal” article that was highly critical of couples who claimed to be cases of “love at first sight.” The article suggested that such impulses were more sexual than serious. The magazine included a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple was unaware that the photo was used and never consented to its inclusion in the magazine. They prevailed in an action for false light given the suggestion that they were one of these sexualized, “wrong” attractions.

In 1967, the Supreme Court handed down Time, Inc. v. Hill, which held that a family suing Life Magazine for false light must shoulder the burden of the actual malice standard under New York Times v. Sullivan. Justice William Brennan wrote that the majority opinion held that states cannot judge in favor of plaintiffs “to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or reckless disregard of the truth.”

Haake has an obvious false light claim here.

However, he may also have a claim under appropriation of name or likeness.

Parody and satire can constitute appropriation of names or likenesses (called the right to publicity). The courts, including the Ninth Circuit, have made a distinctly unfunny mess of such cases. Past tort cases generally have favored celebrities and resulted in rulings like White v. Samsung, a perfectly ludicrous ruling in which Vanna White successfully sued over the use of a robot with a blonde wig turning cards as the appropriation of her name or likeness. It appears no blonde being — robotic or human — may turn cards on a fake game show.

It is not, however, clear that this was done for a commercial as opposed to a purely political purpose.

In 1988, the court handed down the important free-speech decision in Hustler Magazine v. Falwell, holding that an offensive cartoon of Rev. Jerry Falwell was protected under the First Amendment from civil liability.

Again, if the campaign did not produce the video, it could claim protection for sharing the video as protected speech. The problem for victims of false light is that it is becoming easier for independent actors to use AI and other means to produce such videotapes. It becomes difficult to then track down the culprits. That can leave a vacuum of accountability.

NBC has a valid objection to this parody even without a lawsuit. The campaign can engage in any number of criticisms against opponents without using this journalist in a faux news clip. It should be taken down.