Candidate for Constable uses photo of three-year-old without parents’ permission

Photo credit: Mike DeLara / Facebook

Mike Delara

ELLIS COUNTY — Mike DeLara, candidate for Ellis County Constable Precinct 4, may have crossed the line and violated Texas Common Law after using an image of a three-year-old from San Jose, California in a campaign advertisement without permission from the child's parents.

DeLara posted a meme on his election Facebook page at 6:54 p.m. on Tuesday, October 20 using the photo of three-year-old Matthew Beltran, also publicly known by his nickname "Mateo", with the words "Linda, Linda Listen Linda - Vote for DeLara 4 your constable" superimposed over Beltran's photo.

Credit: Mike DeLara / Facebook

Mike DeLara, candidate for Ellis County Constable Precinct 4, posted this meme to his candidate Facebook page on October 20, 2015.

The problem is that DeLara never received permission from Beltran's parents, Linda and Kenneth.

"We did not give permission for Mateo's image to be used by Mr. DeLara. We are from San Jose, California and are not informed or following DeLara's political agenda, so we do not have an opinion. We would rather he wouldn't use his image," the parents said in a joint statement Tuesday evening.

Mateo became an Internet sensation in February 2014 after his parents posted numerous humourous videos of the child on YouTube. The Beltrans' videos went viral after Ellen Degeneres featured Mateo's video on her Ellen Degeneres show and invited him to appear on a March 2014 episode.

Watch a segment of the the Ellen Degeneres Show below.
[youtube=https://www.youtube.com/watch?v=SxNeKlO4hF4&rel=0&w=590]

The photo of Mateo that DeLara used in his meme originally came from a video Linda uploaded to YouTube on February 19, 2014 where Mateo debates with his mother.

Watch the original video of Mateo below.
[youtube=https://www.youtube.com/watch?v=aFYsJYPye94&rel=0&w=590]

The problem with DeLara's use of a photo of the three-year-old in a campaign advertisement without permission is that Texas Common Law provides individuals with the right of publicity to protect their name or likeness.

According to Digital Media Law Project, previous court rulings, including the Fifth Circuit Court of Appeals, use a three-prong test to determine if a person's name or likeness was misappropriated.

That test includes determining if a victim's name or likeness was used for its value rather than incidentally or for a newsworthy purpose, can the victim be identified and did the violator receive an advantage of benefit as a result of using the victim's name.

According to a 1994 Fifth Circuit Court of Appeals ruling, unauthorized use has occurred if all three tests are confirmed. Additionally, 1999 and 2005 Texas court rulings stated that the third prong of the test is satisfied if the victim's name or likeness led to some benefit, commonly commercial, that the violator otherwise would not have received.

Although Mateo's family did not mention seeking legal action against DeLara, damages can be steep for violators. First, either $2,500 or the amount of damages sustained, whichever is greater, can be received. Additionally, it is possible a plaintiff can recover additional monies for mental and physical pain and suffering.

After requesting a response from DeLara via a private message to his campaign page, which was read, he deleted the meme at around 9:30 p.m. DeLara has not responded to our request for comment as of press time.

According to DeLara's Twitter page, he holds a master peace officer certification, has been in law enforcement for more than 24 years and has been a resident of Ellis County for 20 years. He is running for Ellis County Constable of Precinct 4 on the Republican Party ticket. The primary election will be held on Tuesday, March 1, 2016.