Microsoft sued over "monkey" photo

The program displays the photo of a black couple sitting on playground equipment when the word "monkey" is typed under the "Clip Gallery" icon. The photo is also programmed to appear under key words such as "couples," "playground equipment," and "monkey bars."

Microsoft has sold several million copies of Publisher 98, which provides users with photos and graphics that can be used in fliers, newsletters, and memos. Microsoft said it became aware of the problem through its own testing, and has notified more than 1 million registered users since May on how to fix it.

"This was an unfortunate, regrettable situation," Microsoft spokesman Greg Shaw said. "As soon as we became aware of it, we went to every possible length to inform all of our customers and to prevent it from being shipped in any product going forward...We regret any offense or inconvenience or discomfort that this may have caused anyone."

Publisher 98, which is sold either separately or as part of other Microsoft products, displays a variety of different images whenever a keyword is typed. The word "sun," for instance, produces images of a sun dial, a bear, and flowers, Shaw said. The word "monkey" displays the photo of the black couple alongside four photos of actual monkeys.

The suit, filed yesterday in federal court in San Diego, seeks class-action status on behalf of all California consumers who have, and could use, Publisher 98, said plaintiffs' attorney Harvey R. Levine. It asks for restitution in the form of replacement products or an improved way for removing the offensive photo from the program.

Microsoft said it has offered to give Publisher 98 users a free compact disc, which contains a tool that unlinks the word "monkey" from the photo of the couple.

Yesterday's suit amends an earlier one filed last Friday on behalf of John Elijah, a former field supervisor for a hazardous waste disposal company in San Diego, who is seeking unspecified damages for mental and emotional distress, among other things.

Elijah, who is black, said in an interview that the photos left him with a "ghost-like feeling" at a time when he was being racially harassed by a higher-up at work. The photos were shown to him by a friend, who suspected the higher-up of producing the photos, he said.

When Microsoft was told of Elijah's experience soon after it happened in February, the company said it could do nothing about existing copies of Publisher 98, though it agreed to correct the problem in a more recent version of the program, according to Levine, who is representing Elijah and consumers.

"I am not totally convinced this was the result of a mistake or inadvertence," Levine said. "There is at least a series of facts that could lead to the conclusion that this was either the result of a sick joke within the company or something beyond a mistake."

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