Wednesday, November 01, 2006

The Naked, Desparate Truth

Actress Marcia Cross is cross, the pun in the newspapers goes, over some naked pictures of her thrown out in the trash, and picked up by keen-(and no doubt wide) eyed garbage men. Some pictures of her allegedly show her showering outside (what kind of neighborhood does she live in, anyway?).

The pictures have now fallen into the hands of an individual who has offered for sale similar (indeed racier) images in the past. Cross is said to be thinking about a copyright infringement suit, but such a suit seems groundless unless her husband took the photographs. (But if he didn't who did?). The distinction between ownership of the physical object and the copyright is found in Section 202 of the Copyright Act but is ancient, going back to a saucy dispute between Alexander Pope and Edmund Curl in which Alexander Pope sued over an unauthorized republication of letters between himself and Jonathan Swift. Pope v. Curll involved dishonesty aplenty on both sides. Edward Curll was a book seller-publisher from Grub Street. He is known for many things, none of them positive. It was said that "Curll would sell anything by whatever means presented themselves… His activities as publisher and bookseller were unscrupulous even for an age of fairly low journalistic ethics. He was a pirate, plagiarist, and no publishing trick was too low for him to stoop to in the name of profit."

Curll had frequent rows with those whom he scandalously pilloried, and was called before the House of Lords a number of times. Alexander Pope's hatred for Curll spanned decades. Pope himself was no saint, and stooped at nothing to make Curll miserable, including slipping him an emetic once. Pope was extremely vain, and in this respect his vanity and battle with Curll came together.

Desiring to publish carefully sculpted letters, but not wanting to seen as doing so, Pope, through an intermediary, delivered anonymously to Curll, had copies of letters he had written and letters written to him by Jonathan Swift, as well as letters by members of Parliament. The letters by members of Parliament were particularly problematic because of a separate statute barring their publication. Pope baited Curll into publishing the letters. Curll took the bait, published the letters, was hauled before Parliament and the courts. In the courts, an injunction was entered barring publication of all the letters until the answer was filed. On Pope’s motion to extend the injunction Lord Hardwicke lifted the injunction as to Swift’s letters, but left it in place as to Pope’s letters: ownership of a lawful copy of letters by Curll did not permit Curll to publish them without Pope’s permission.

Pope conceded that Curll owned the physical letters, but Curll countered that ownership of the physical letters meant that Pope was no nonger “the author and proprietor of any of the said letters,” in short, as Ronan Deazley put it, Curll “claimed that Pope’s dominion over the letters began and ended with the physical manuscript.” For his part, Pope argued that “while he was no loger the proprietor of the letters in question, he was still their author, and as such retained the ability to decide whether or not they should be printed and published.” The reports of Lord Hardwicke’s precise phrasing of the matter vary, given the lack of a manuscript version of the opinion, but all reports agree that the Lord Chancellor ruled Curll’s ownership of the physical object did not give him the right to print them.

21 comments:

Anonymous said...

Your analysis is, as usual, pretty revealing.

Crosbie Fitch said...

My sympathies if the US constitution does not recognise privacy, or that it has been poorly and improperly subsumed into US copyright law.

If an author’s private documents are stored in their private property or deposited into private disposal facilities, then there is no permission to publish.

Illegitimately coming into possession should not constitute permission.

As to correspondence, one could say that, without contract, it may be published by the recipient - given implicit confidence by the sender. It's primarily a reputational issue to break that confidence.

Garbage is not correspondence to strangers.

Marcia Cross has a human right to decide whether her private documents should be published, if ever, or destroyed.

Why don’t we keep the monopolistic privilege of exclusive reproduction as a publication incentive out of this? Marcia Cross does not want to enjoy any incentive nor does she want anyone else to enjoy such an incentive.

There is a fundamental difference between the unauthorised publication of private IP, and the unauthorised reproduction of published works. The former is a violation of privacy, the latter is a mere infringement of an anachronistic commercial incentive.

William Patry said...

Crosbie, there is of course Roe v. Wade. I think that you assume the answer when you refer to an author's private documents. Ms. Cross was not the author of the photos, although clearly their star. If the copyright owner objects to their exposure (ha, ha, ha) - including publication -- then he or she can do so, but what the copyright owner can't do is to prohibit the sale of the tangible photograph, which of course Ms. Cross threw out. You may trash talk (ha, ha, ha) the garbarge men, but they did come to them legitimately.

Moreover, I assume (Josh Wattles help out here) that California has privacy and publicity laws that could help out with uses beyond selling the photos themselves.

Crosbie Fitch said...

Ok, so Ms Cross is not the author.

Substitute 'the author' wherever I wrote 'Marcia Cross'. My words stand undaunted.

Naturally I expect Ms Cross now regards her photographer in a slightly less favourable light, as presumably do many others.

I'm bemused to infer that garbage is considered the public domain.

In some countries one's garbage remains private - garbage men mere ushers on its untouchable path to oblivion.

Have you people no sense of decency whatsoever?

William Patry said...

Crosbie:

I don't think even Rupert Murdoch's New York Post can compete for indecency with his and other UK publications. I don't think any U.S. papers showed photos of Princess Diana's death anywhere near as graphic as ones in the UK. On the whole, I think we are far more prudish in our publications than the UK and certainly Europe. I admit that we do have a new class of celebrity who have become famous thrugh the widepsread dissemination of them in home-made porno movies, like Paris Hilton ("A Night in Paris") and Pamela Anderson (to many to list), and that porno stars are now quite mainstream (Jenna, not the one in the White House). But such things are not the norm on Wisteria Lane.

And is it really the case in the UK that if you throw out your garbage that you can ask for it back later? Is there no concept of abandonment of property in the UK?

Crosbie Fitch said...

Here's some pertinent discussion:
www.rbs2.com/privacy.htm

I've no problem with jilted lovers deciding to publish home movies or anything else - as long as they were legitimate possessors of the material and had not signed NDAs, etc. They've their own reputations to trade.

Searching through garbage, spying, or any other invasion of privacy is bad. Publishing the material so obtained is a serious privacy violation quite different from copyright.

If you do want to look at the commercial/copyright angle then consider that selling someone's private materials for publication without authorisation then prevents their author enjoying that sale - an irretrievable theft. The point is though, the author has a right to decide not to publish - however much of a celebrity they are.

Of course, if publication could reveal something like Watergate, then it could be forgivable, but entertainment does not constitute 'public interest' (in the sense intended).

Anonymous said...

Crosbie--
I think that your position on jilted lovers is inconsistant. Sure, one of the lovers with a grudge against the other would be perfectly free to besmirch their own reputation, but then why would they be allowed to bring in the other party? And if they can, then why can't anyone?

Searching through garbage for abandoned property (which is what garbage is when it hits the street) is perfectly fine, whether it's bums looking for deposit bottles, dumpster divers looking for perfectly useful information or equipment (e.g. technical documents that were prized by parts of the hacking culture, working electronics, etc.), or investigators that are gathering information based on trash.

If someone is worried about their privacy, they need to take some steps on their own behalf, such as shredding what they abandon on the curb, or finding a more secure trash pickup service.

There's no privacy violation however; by throwing the material out, it was made public to anyone who might find it. That it was actually found, rather than merely being potentially found, isn't really what's relevant.

Nor is this really a problem either. Privacy rights are largely just a legal fiction and only tend to come into play when the cat's already out of the bag and privacy has been irrevocably lost. Real privacy is a lot more difficult.

But as for copyright (the policies of which having absolutely nothing to do with privacy), it wouldn't cover the existence or a basic description of the photos and their subject matter. So a copyright couldn't protect privacy anyway, which would be lost as soon as people know that there even are these photos.

Nor would copyright bar the photos from being sold. So long as the copies being sold were lawfully made (as presumably they were) it is noninfringing for the owner of the copies to resell them to absolutely anyone under the sun. That's the first sale doctrine, which despite the name doesn't require a literal sale. They just need to own them, which they do, since they retrieved them from a state in which no one owned it.

Whether mere resale would be publication or not is irrelevant, since copyright does not include the exclusive right to publish; instead it includes the right to make more copies (not at issue in mere resale), and the right to distribute copies (to which first sale is an exception).

Fred von Lohmann said...

The lesson here is clear - if you want nude pictures of yourself, be sure you're the one taking the photos. Then you've got the full range of copyright remedies against unauthorized reproduction (although you would not be able to prevent the "sanitation engineers" from selling the copies found in your trash).

Hey, even the cheapest digital cameras now have auto-timers. :-)

Berne Baby, Berne said...

Crosbie-

Do you have any support for your statement that garbage remains private in the United kingdom? I am not aware of any. Privacy rights are on the whole more respected in the United States than they are in the UK. Ms. Cross, just as Pamela Anderson and Cameron Diaz did in their encounters with this issue, likely has recourse under California statutes that protect the right to publicity (a right that is not recognized in the UK). It is noteworthy that Privacy International, a London-based organization, ranks the UK as barely above the People's Republic of China in the adequacy of protection of privacy.

Protection of privacy has been judicially and statutorily established in the US for well over a century. The basic premise underlying these laws is that an individual must have a reasonable expectation of privacy and take reasonable measures to preserve it. For example, if you don't want nude photographs of yourself showering made public, you should shred them before putting them in the garbage, because garbage is abandoned property and accessible to outsiders. On the other hand, if you hand your camera to a friend to take nude photos of you showering, and then you take them to the local Walmart to have them processed, you do have a right not to have Walmart employees circulate them among the community. The reason is that it is reasonable to expect that employees of a store that you are doing business with will not appropriate and disclose your images. In other words, you do have a duty to act reasonably about protecting privacy and can't just rely on the judgment of strangers to know when to avert heir eyes. Or as I told my daughter when she was much younger, don't pick your nose when a camera is pointed at you.

William Patry said...

When will her husband speak up and reveal who took the pictures and why?

joshua wattles said...

William Patry wrote: "Moreover, I assume (Josh Wattles help out here) that California has privacy and publicity laws that could help out with uses beyond selling the photos themselves."

California has a right of publicity law that would protect against unauthorized use of a name or likeness (and signature) in solicitation (commercials, not other that other stuff) or sale of goods. And California has a cornucopia of privacy laws about driver licenses and health information, credit histories and other private facts - - but not nude photographs - - along with trespass and theft laws (civil and criminal) that might or might not apply to garbage or the circumstances under which the photographs were taken depending on the pile of facts. But California also has a healthy respect for the 1st Amendment and its equivalent in the California constitution. If those pictures are hot in the eye of the public, any self-called news rag or magazine can probably print them if they don't mind taking a risk on the photographer's copyright claims.

Why should the photographer have superior rights to the owner of the exposed body? My impression is that the 1st amendment trumps privacy and publicity laws much more frequently that it does the copyright laws. Ask Professor Patry.

Crosbie Fitch said...

I make no claims concerning the UK.

As for the idea that garbage should constitute publication (!) I can only repeat my URL
www.rbs2.com/privacy.htm
.

Anyone made privy to private works with the consent of all concerned shares a mutual trust (unless bound by contract), and consequently an informal responsibility and privilege. No law is required to protect this confidence.

As to the rights of the author(s) to determine matters concerning their private works, I have in mind moral rights, particularly the French right of publication (droit de divulgation): the author is the sole judge as to when the work may be first made available to the public (Art. L121-2) (via WikiPedia and Rob Myers).

A photographer invited by the model has an entirely different privilege to an uninvited photographer with a telephoto lense.
The latter is just as bad as a journalist looking to publish discarded photos found in the garbage (perhaps that failed to pass muster), and is violating privacy.

Freedom of speech does not demonstrate the need for a freedom to violate another's privacy. And a privacy violation does not magically cease to be one simply given a fait accompli.

I expect Hollywood would be pretty concerned if simply finding a prerelease cut of a movie in the garbage (or a digital equivalent) entitled the finder to sell it to an unscrupulous pirate.

I find it alarming that more concern is expressed wrt the unauthorised distribution and reproduction of published works (public knowledge), than for unpublished works (secrets).

Crosbie Fitch said...

Oh, and while I'm dishing out HTs it was Tim Cowlishaw who kindly pointed out the English translation of the 'Code de la Propriete Intellectuelle' to me.

William Patry said...

To answer Josh's question, Marcia is pretty well exposed legally. She may have a right not to speak and to keep her clothes on, but once she exercises her right to take them off, legally she's talking trash. And hasn't anyone found out who took the picures?

Crosbie Fitch said...

The final frontier between the individual and the instantaneous diffusion of the public melting pot we know of as the Internet is the private/public boundary.

So, you'd better start piling sandbags up against the townsfolk's front doors chaps, because the dam is breaking and the four walls of their houses are the only thing people have left to retain control over their private works.

Those sandbags will need all the legal reinforcement you can muster.

That includes the garbage bins, the sewers, the keyholes, the windows, etc.

And no house should be left vulnerable, even if you fancy the occupants could do with a wash.

William Patry said...

Really, what are you Brits so afraid of? I can't wait to see the pictures and am damn grateful she threw them out.

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