Broward Circuit Judge Elizabeth Scherer. Photo: J. Albert Diaz/ALM.

When Broward Circuit Judge Elizabeth Scherer threatened to hold the Sun Sentinel newspaper in contempt for publishing confidential information about the Parkland school shooting case, many readers took to Twitter to weigh in — on her appearance.

“I'd commit crimes every day just to see her,” one tweet said.

The comments accompanied a Sun Sentinel story shared on Twitter, which detailed Scherer's “furious” scolding of the newspaper after it released accused shooter Nikolas Cruz's unredacted educational records. Cruz has admitted to the Feb. 14 attack at Marjory Stoneman Douglas High School in Parkland, where he killed 17 students and staff.

The mass school shooting has received global attention and is the biggest case of Scherer's career so far.

Deborah Baker-Egozi of Greenspoon Marder in Miami called the comments “detrimental,” “objectifying and sexualizing,” and said they “hinder” the ability of female attorneys to be “taken seriously as professionals.”

“Unfortunately, perceptions affect compensation, advancement and opportunity, and until women are judged on the same merits as men, it is difficult for women to have a level playing field,” she said.

Among the comments were those calling Scherer “wife material” and criticizing her application of eyeliner. One just reduced matters to one word: “Yowza.”

 

Judicial clickbait

Now photos of Scherer have popped up as clickbait for sponsored articles on mainstream Internet sites.

One image, taken by Sun Sentinel photographer Amy Beth Bennett showed up as art for a sponsored story on Local10.com about home mortgage rates, while another appeared via MSN.

Photo of Broward Judge Elizabeth Scherer, being used in sponsored articles.

Bennett and the Sun Sentinel did not wish to comment, but confirmed that the image was a “pool” photo, shared among news outlets, and intended for editorial — not commercial — use.

Brittany J. Maxey-Fisher, an intellectual property attorney and managing partner at Maxey-Fisher PLLC in St. Petersburg, seconded that notion.

“Whoever snaps the shutter of the camera is the one that's going to own the rights and the copyright itself,” she said.

According to Maxey-Fisher, using photos of public figures “to gain a commercial advantage” is becoming “more and more prevalent” as the digital imagery field grows.

But those weighing in on the judge's appearance likely have high-level leeway.

According to patent lawyer Michael J. Pike of Pike & Lustig in West Palm Beach, “Commenting on Judge Scherer's physical appearance, while unrelated to the story at hand, is completely protected by the First Amendment of the Constitution.”

Pike pointed to a 2001 case, Suntrust Bank v. Houghton Mifflin, where the court held that “copyright does not immunize a work from comment and criticism.”

“This means that whatever people wish to say in connection with the news story is inconsequential as it relates to a claim of copyright infringement,” he said.

And when it comes to sponsored articles, “it's up to Judge Scherer to stop her likeness from being used by any commercial enterprise,” according to Pike.

The Lanham Act, which governs false endorsements, sometimes offers a legal remedy for celebrities and public figures when advertisers use their images to imply endorsement of a product.

Related story: Attorneys Weigh in as Judge in Parkland Shooting Case Threatens to Hold Sun Sentinel in Contempt

Daniel Lustig (left) and Michael J. Pike (right) of Pike and Lustig in West Palm Beach. Courtesy photo.

Pike's partner, Daniel Lustig, pointed out that “this is news photography,” and that creators don't necessarily have copyright control over the depiction of their work.

'Disheartening'

Legal claims aside, the Florida Association for Women Lawyers told the Daily Business Review it was “disappointed” to learn that Scherer's photo was ”misappropriated without her consent for marketing purposes.”

“The judge's photograph was taken in the course of a judicial proceeding in a very serious matter,” a FAWL spokesperson said. “The public comment focusing on her physical appearance, rather than the issue being addressed, promotes the objectification of women.”

Judge Elizabeth Scherer. Photo: J. Albert Diaz/ALM.

Related story: Meet the Broward Judge at the Helm of the Parkland School Shooting Case

IP lawyer Maxey-Fisher, also a former FAWL president, said it was “disheartening” to see Scherer's photo used that way, and that both Scherer and the photographer could potentially follow up with a legal claim.

“If this were to happen to someone as a judge or as a female, it's important for people to realize that there is something that can be done about it,” Maxey-Fisher said. “A lot of the websites will pull down copyrighted images once you put a request in.”

Scherer and Broward Chief Judge Jack Tuter declined to comment on the matter.

Scherer was appointed to the bench by Gov. Rick Scott in 2012 and was re-elected in 2014. She has been practicing law since 2001.

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