Don D. Buchwald of Kelley, Drye & Warren LLP, counsel for the call-girl involved in the Gov. Spitzer scandal, is standing up for his client’s rights.
He’s not defending against allegations of prostitution or the like.
He’s claiming that photos of Alexandra Dupre found in the media are violating copyright laws.
Photos such as the one on the right were liberally reproduced from her MySpace page by media sources in print and television.
But Buchwald claims that neither permission or royalties were granted for their use.
According to the MySpace policy, he might have grounds for a claim,
Content Posted.
- MySpace.com may delete any Content that in the sole judgment of MySpace.com violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person. MySpace.com assumes no responsibility for monitoring the MySpace Services for inappropriate Content or conduct. If at any time MySpace.com chooses, in its sole discretion, to monitor the MySpace Services, MySpace.com nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
Major civil suits have yet to be filed for the use of media use of photos found on the net that retain copyright.
Appropriation of personality is an established grounds for a claim in the U.S., as we’ve previously discussed.
Some commentators are discussing the cost of her personal privacy being offset by potential payoffs from celebrity. Her music downloads have skyrocketed, and there is talk of a book or movie.
But the settlement from royalties off the use of her personal photos could be the best payoff yet.
Expert Opinion
We polled some of the experts, and here is what they thought (available only on our site).
David Nocilly, a patent and IP lawyer with Bond, Schoeneck & King, PLLC in Syracuse, NY, and Adjunct Professor at Syracuse University, said,
Although the owner of the copyright in photographs, which is the photographer and not the person pictured unless an assignment has been made, has the right to control the makng of copies, there are certain permissible uses under U.S. copyright laws. For example, the “fair use” of a work for news or commentary purposes may not constitute copyright infringement.
Some U.S. states have laws to protect the right to privacy, such as the use of someone’s name, image, or likeness for commerical or advertising purposes. These laws usually have exceptions for news or commentary similar to those for copyrights.
But Greg Curcio, an independent lawyer and screen writer in New York, New York, said,
The lawyer should have a good leg to stand on. Photo’s taken outside of a public figure are in the public domain (Jacqueline Onassis case).
These photo’s were taken before she was famous/infamous.
Several states have passed specific laws on the subject. Caslon Analytics state,
Special ‘rights’ legislation seeks to prevent unauthorised commercial use of an individual’s name, likeness (including silhouette, voice or signature) or other recognisable aspect of that person’s persona. The individual – and in some instances the individual’s heirs – gain an exclusive right to license use of the persona for commercial purposes. In the US the notion dates from a judge’s broad statement in Haelen Laboratories v Topps Chewing Gum, 1953 litigation involving baseball cards.
T.D. Ruth, an entertainment lawyer with Lassiter, Tidwell, Davis, Keller & Hogan PLLC from Nashville, TN, recommended William Patry’s post on the subject. Ruth, who blogs on Digital Copyright News, summarized the issue,
In short, it’s unlikely she has a copyright in several of these photos, as they are instead with the photographer. They are snapshots, and I highly doubt that she considered arranging a work for hire or assignment for such photos. Further, as previously mentioned, no statutory damages or attorney fees without registration prior to infringing activity, thus only actual damages, which are probably minimal.
Even if she did have a copyright claim, it is entirely likely that the new organizations’ use would be deemed fair.
Drew Carson, Ph.D., wrote in,
Interesting question on IP. I’m no lawyer but I’ve read some books on IP applications in test development, and will touch on some themes related to the case you describe.
First, there are two main areas of IP right this relates to: copyright and right of publicity/privacy. I’ll deal with both in turn.
For copyright, as David Nocilly notes, it’s the person who owns (or has control over) the facets of the copyright at issue that can bring charges of violation of a specific copyright. And as Nocilly notes, copyright gets subdivided into various facets, each of which can be assigned. Second, someone can bring legal action against another party even if no formal copyright is filed, but you can only collect damages if the copyright was formally registered. So one question is: were copyrights for the images ever formally registered? Third: Curcio references fair use as putting something into the public domain, but I believe he misspeaks. I believe that fair use interpretation doesn’t put a copyrighted item in the public domain as much as protects use of a copyrighted item so long as it falls under the category of fair use. US court decisions tend to work hard (traditionally, at least) to protect individual creative rights associated with copyright; however, to the degree that copyrighted materials bounce up directly to first ammendment rights, at least related to the actions of politicians, courts tend to go the fair use route. The argument that a call girl caught up in a Mann Act investigation involving a sitting governor would seem, on the face of it, to fall onto the side of fair use, and the public’s right to know, and thus be protected by the first ammendment. Curcio’s suggestion that rights protecting images of deceased politician’s wife’s subsequent images would seem to me to be apples and oranges. But then that’s what we have courts for. But my guess is that courts would decide in favor of first ammendment, because publication of the images seemed to contribute to the sitting politician’s decision to resign, this in reaction to public outcry that followed publication of the images in question. If that’s not first ammendment in action, I don’t know what is.
On to right of publicity. These rights are connected with right of privacy, as Nocilly notes. They are especially strong for people who are not famous and might have reasonable expectation to remain that way. If you’re a big deal celebrity or politician, well, you pays your money and generally take your chances when you do something stupid and the public finds out. But you need to be more careful around spreading the stories of the little guy. Well, strikes me that the model lost some of her little guy standing when she started her trysts with the sitting governor of New York. In doing so, a reasonable person might believe that she is moving in the realm of celebrities and politicians. Thus, she might have had a claim for objecting to her image being slapped across all media before she hung with the gov, but she lost that claim the moment the moment she crossed that line. But again, the law would need to be interpreted in relation to the states involved.
Another issue you didn’t raise: let’s speculate for the moment that the business activity in which she was engaged and that caused the photographs to be taken in the first instance falls under the category of RICO. The who operation sounds pretty RICO-like to me, particularly if the clients of the group turn out to be doing any favors for the organization. If so, wouldn’t the government be able to seize all property associated with that criminal enterprise? And wouldn’t that include any copyrights in question, if they were owned by the criminal enterprise?
Wouldn’t it be cool if law school students in IP courses have to argue this in their classrooms?
Todd Sullivan, Managing Attorney at Hayes Soloway PC in Boston, agreed with most of the responses,
Fair use can generally be relied upon by the news media to avoid copyright claims. Even portions of the entertainment media (The Daily Show, The Tonight Show, etc.) can claim the exemption as part of news commentary, I believe. If we assume that she knows the photographer and can get the photographer to assign his rights or enforce them, I don’t expect she will be collecting anything.
With regards to the rights to publicity (or, more aptly, rights from publicity), she gives that up when she becomes newsworthy. Her pictures and name have appeared in many news stories, ipso facto she is newsworthy.
An interesting separate question comes with pages from MySpace. By publishing your photos to the world do you waive some sort of right (separate from copyright) to keep others from showing them to the world? You can’t publish an idea and claim a trade secret in the same. Can you publish yourself and claim a right of privacy in the contents of the publication? The question above does not indicate a complaint as to publicity/privacy rights, but it is an interesting question.
Sean McBeth, Developer at Global Data Consultants, LLC, said,
In the specific case of the Spitzer scandal, use of the call-girl’s photos in new articles is considered “Fair Use” under current Copyright law. As previously stated, she doesn’t own the copyright, either. By default, copyright is assigned to the photographer. In fact, most contracts between photographers, clients, and models are primarily concerned with compensating the photographer for transfering copyright. There really is no discussion on the matter, she neither owns the copyright nor can dictate the use of the photos for the purposes of editorial work.
McBeth also suggested we deal with copyright issues for celebrities the same way we do all other copyright issues,
By framing the question in the context of the Internet, you are making a fundamentally false assumption — that interaction on the Internet is somehow different than all other human interaction. It’s just all talk! While the Internet has changed *how* we communicate en masse, it does not change the fact that we are communicating person-to-person.
The Internet is the most significant advancement in communication since *the printing press*. The printing press revolutionized communication by changing the topography of communication.
The Internet changes the topography of communication again, unlike any other innovation in media since the printing press. Radio, motion pictures, television, all capitalize on the same 1-to-Many topography as the printing press. Only the Internet has expanded the topography to Many-to-Many.
Before the printing press, communication was limited to 1-on-1 correspondance. Dedicated monks spent lifetimes copying tomes by hand, letter for letter, in the sanctified (and inaccesible) halls of the monastery. Knowledge was limited to the elite few and such a rarified commodity that a concept of copyright was unnecessary. It just wasn’t physically possible to copy without the concent of the owner!
With the printing press, we achieved a reliable, efficient means of 1-to-many correspondance. Knowledge became accessible, and it is here that we see the true age of enlightenment of mankind. When people could access knowledge without having to become an impoverished monk, people could grow and create the modern, industrialized world. However, this came at a price, as the ease of copying made it too easy to short-change the original producer of the work. This is where copyright law came into play, to protect the content producer.
With the Internet, we have changed the dynamic again, we now have Many-to-Many communication, something we have never had before. We are in the beginnings of a new era. Suddenly, anyone may become a producer of content, and people may collaberate on content creation more freely. But that is the only change. The fact that content is being consumed by many people is still the same.
Whereas copyright law was introduced to protect producers from nefarious consumers, in the age of the Internet nothing has changed from the perspective of the producer. All that we have changed is who can become content producers. If anything, this suggests that copyright law should be broadened to reconsider who owns copyright of material, specifically in regards to collaberative works, but does not suggest anything should be changed about how that right should be protected.
Matt Digesti of HRD Law in San Diego said,
…the analysis is fact-sensitive and cannot be made through recitation of broad copyright consepts and rules.
I must agree with William Patry’s post and conclude that the controlling “fair use” determination under these facts is whether the reproduction of the pictures is a “transformation of the work into news” or whether the reproduction of the pictures is a based merely on the “newsworthiness of the works themselves.” Nunez v. Caribbean International News Corp, 235 F.3d 18 (1st Cir. 2000).
In Nunez, the reproduction of pictures was considered a transformation of the work into news for the following reason: the photos were originally taken for a modeling portfolio and the subject of the news article was whether the model could sufficiently represent Puerto Rico as Miss Universe with such pictures accessible to the public. As such, the reproduction of the pictures furthered the topic of the article and in essence, transformed the photographs into news. Put differently, the photographs were reproduced “not just to entice the buying public, but to place its news article in context” and inform the public.
Here, the Post could cite the Nunez case and argue that the use of the photographs were not reproduced merely to entice the buying public, but to place the news article in context and inform the public of the identity of the call-girl. Consequently, the reproduction of the pictures transformed the photographs into news and the fair use exception under the first factor in section 107 most likely applies.
Susan Singleton of Singletons in Harrow, UK, one of the leaders in IP/IT in their country said,
As in the US the subject of the photograph doesn’t own the copyright unless that is agreed. For example Ms Dupre when she was 18 allegedly took part in some filming on a bus (the videos, many hours of them that are now available to download for a fee by the company that was about to pay her when they realised they already had this material from years before). She would have signed something when she took part in that and that will be that (unless she didn’t know what she was doing or was under age or whatever). Other photos – again depends what was agreed at the time.
In the UK we had a recent case concerning the child of JK Rowling, the author. Our courts held you can photograph anyone in the street and publish it and that will not breach any privacy, data protection or human rights laws, whereas if you sneak into their private house and take pictures even though you own the copyright you are unlikely to be free to print them. (We also have some fair use rights here too).
I would doubt she owned the copyright in any of the photos being used but those who do may be able to try to recover some royalties.