Tuesday, February 06, 2007

Paris is OverExposed

CNN reports that a federal judge in Los Angeles has enjoined the now popular website, ParisExposed.com from releasing Paris Hilton's Social Security number, health data and other personal information. The story states:

The subscription-based Web site was launched last month and claims to have footage of Hilton in a "sexy bubble bath" video and various shots of the 25-year-old socialite in "racy situations."
Hilton previously said she put her possessions in storage two years ago when she and her sister, Nicky, moved out of a house that had been burglarized. The lawsuit alleges two defendants paid $2,775 for the contents of the storage unit and later sold the items for $10 million to entrepreneur Bardia Persa, who created the Web site.

Hilton's spokesman, Elliott Mintz, said Saturday he was pleased by the move. "I know what this has done personally and emotionally to Paris," Mintz said. "As far as I'm concerned, this is the most disturbing intrusion upon the privacy of a public figure that I've ever witnessed."

One would have thought Mr. Mintz had seen quite a lot in his day. On the copyright angle, which seems not to be a part of the case, naturally, sale of the iterms is covered by the first sale doctrine, but at least as to the diaries, I would think Paris retained the copyright as well as in any other photos or videos she took. Not having paid the subscription, I would still imagine much of the images were taken by others who then retain the copyright. And, after all, the first sale doctrine is not a limitation on the public performance right, even for such a very public performer.

5 comments:

Fred von Lohmann said...

The "copyright angle" is very much part of the case, as it appears to be the basis for Ms. Hilton's invocation of the jurisdiction of the federal courts. (See complaint.) The complaint further concedes that the contents of Ms. Hilton's storage locker were lawfully foreclosed on after her movers failed to make payments on it, so there is no argument that ParisExposed came by the materials lawfully.

The court's TRO would appear to be a prior restraint on pure speech. Assuming Playboy legitimately obtained these materials and wanted to publish them in their next issue, would the court be entitled to "stop the presses" this way? In prior cases, privacy interests have generally not been enough to justify a prior restraint. Does copyright justify the prior restraint here?

William Patry said...

Thanks, Fred. Understanding that the Copyright Act (and Lanham Act) were pled as the basis for federal jurisdiction, am I correct that the injunction did not reach these issues, but instead the pendent state claims?

If so, why is there any First Amendment issue restraining defendants from publishing her social security number? As I noted in the posting, Paris is the copyright owner of her diaries, and the complaint in Paragraph 23 asserts ownership of three "writings": "Love Letter," "I Can't Take it," and "How Would You Know."

The complaint also notes that registration has only been applied for, not issued, so there is no subject matter jurisdiction (yet) under title 17, hence no issue of prior restraint: the court has no power to issue an injunction covering copyrighted materials.

Your broader First Amendment question though would, for me, have to be more fact specific. I mean, its not like it is particularly newsworthy that there are "racy" pictures of Paris Hilton anywhere. I wouldn't be surprised to see them as playing cards. On the copyright side, for me there would have to be a fair use justification, some commentary. The idea that injunctions aren't permitted in copyright cases involving speech works has never met with any reception by the courts that I am aware of, except for two instances in which a comment was made from the bench.

Photo Lawyer said...

Bill:

Tucked within the legislative history of the 1909 Act is a record that the newspapers of the day tried to get an exception to publish any photograph they deemed newsworthy without the permission of the photographer. Fortunately, the activist photographers of the day fought against this and won. Where anyone gets the idea that there is a "newsworthy" exception to publish photographs for their content is beyond me and essentially would negate any benefit a photographer has for registering copyrights.

--Christine Valada

Anonymous said...

To Christine's point - while a photo of something that is newsworthy might not be a valid exception, it can be argued that in some circumstances the exisistance of the photograph is itself something worthy of comment? For example, a news story about the Queen having no clothes, that happens to use a nude photo of her might violate the photographer's right. However, a news story about how the Queen allowed herself to photographed in the nude is a valid story, where the photograph itself is the news, not just a tool to illustrate the fact that the Queen was in fact nude. A fine disinction, but I think a valid argument.

Not sure why I am picking on the Queen.

Ken

William Patry said...

I agree with the fine distinction made by Ken, although I would probably not look. A friend has provided me paragraph 1 of the injunction, which bars defendants from "infringing the copyrights in the works owned and registered by Plaintiff's entitled 'I Can't Take It,' "How would you know,' "and 'Love Letter' (Plaintiff's Copyrights'), directly or indirectly, by any means, including but not limited to reproducing, distributing, publicly performing, publicly displaying, importing, selling, or offering for sale any unauthorized copy of any portion of Plaintiff's Copyrights."

By limiting the injunction to registered works, my early query is answered, but I wonder whether enjoining use of any portion survives fair use scrutiny; for example, what if, rather than simply making all of these literary masterpieces available online without comment, an exceprt was used for this proposition: "Paris has repeatedly said she never" - you fill in the blank -- "but in her 'Love Letter' she admits she has, and loves it," quoting the relevant part of the letter.