Last week, those of us in the New York metropolitan area, were treated to a constant barrage of news stories about now former (as of today) NY governor Eliot Spitzer's dallying with prostitutes, including "Kristen," a/k/a Ashley Alexandra Dupre, a/k/a Ashley Youmans. The NY Post, a virulently right-wing Rupert Murdoch tabloid property that loves to loathe Spitzer was in hog heaven. (Today's Post has an even more shocking front page story about former New Jersey Governor Jim McGreevey, his wife, and a driver).
The Post also secured what it called exclusive rights to certain pictures of "Kristen" without clothes, which it reproduced on the cover and inside pages. It was not clear from the Post story who took the pictures, but unless "Kristen" did or unless she got an assignment of rights from the photographer, she doesn't own the copyright. Nevertheless, a bloviating lawyer who says he represents her was bloviating about the Post committing copyright infringement.
Ownership issues aside, the use by the Post has an obvious claim to fair use. The First Circuit had a case involving similar issues in 2000, Nunez v. Caribbean International News Corp.
235 F.3d 18 (1st Cir. 2000). Here are the facts, from the court's opinion:
Núñez, a professional photographer, took several photographs of Joyce Giraud (Miss Puerto Rico Universe 1997) for use in Giraud's modeling portfolio. Núñez then distributed the photographs to various members of the Puerto Rico modeling community in accordance with normal practice. After the photographs had been taken, some controversy arose over whether they were appropriate for a Miss Puerto Rico Universe, based on the fact that Giraud was naked or nearly naked in at least one of the photos. A local television program displayed the photographs on screen and asked random citizens whether they believed the photographs were “pornographic.” Giraud was interviewed by two local television stations as to her fitness to retain the Miss Universe Puerto Rico crown. El Vocero then obtained several of the photographs through various means. Over the next week, without Núñez's permission, three of his photographs appeared in El Vocero, along with several articles about the controversy.
The district court ruled for the newspaper, and the court of appeals affirmed, in language that is quite relevant to the Spitzer affair:
We agree with the district court that the commercial use here, however, constitutes more than mere reproduction for a profitable use. The photographs were used in part to create an enticing lead page that would prompt readers to purchase the newspaper. Thus El Vocero used the photograph not only as an ordinary part of a profit-making venture, but with emphasis in an attempt to increase its revenue. … For this reason, the commercial nature of the reproduction counsels against a finding of fair use.
However, the district court also found that the pictures were shown not just to titillate, but also to inform. Puerto Ricans were generally concerned about the qualifications of Giraud for Miss Puerto Rico Universe, as is demonstrated by the several television shows discussing the photographs. This informative function is confirmed by the newspaper's presentation of various news articles and interviews in conjunction with the reproduction. Appellee reprinted the pictures not just to entice the buying public, but to place its news articles in context; as the district court pointed out, “the pictures were the story.” It would have been much more difficult to explain the controversy without reproducing the photographs. And although such an explanatory need does not always result in a fair use finding, … it weighs in the favor of appellee.
This is not to say that appellee's use of the photographs was necessarily fair merely because the photographs were used for news purposes, nor does it establish a general “newsworthiness” exception. First, the Supreme Court has specifically frowned upon such an exception….. Second, the problem with such an approach (as the Supreme Court pointed out) is that it provides an incentive for the infringer to create “news,” so that its infringement falls within the exception. …Were a “newsworthy” use per se fair, journalists and news photographers would be left with little assurance of being rewarded for their work. … It suffices to say here that El Vocero did not manufacture newsworthiness, as it sought not to “scoop” appellant by publishing his photograph, but merely to provide news reporting to a hungry public. And the fact that the story is admittedly on the tawdry side of the news ledger does not make it any less of a fair use.
Rather, what is important here is that plaintiffs' photographs were originally intended to appear in modeling portfolios, not in the newspaper; the former use, not the latter, motivated the creation of the work. Thus, by using the photographs in conjunction with editorial commentary, El Vocero did not merely “supersede[ ] the objects of the original creation[s],” but instead used the works for “a further purpose,” giving them a new “meaning, or message.” … It is this transformation of the works into news-and not the mere newsworthiness of the works themselves-that weighs in favor of fair use under the first factor of § 107
Monday, March 17, 2008
Eliot Spitzer and those Nude Photos
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9 comments:
That opinion reads like a court in search of a rationale to justify the result they wanted. At least from the excerpts you've provided. If someone becomes a news item, any copyright held in works by or about them becomes mostly unenforceable under the rationale that the public needs to judge that person's qualifications for whatever makes them a news item. I'm not sure the public needs to judge Ms. Dupre (or whatever her name is) for her qualifications to be a call girl to the rich and powerful, and yet under this ruling that's a sufficient judgement to justify abrogating her copyright (should she own it).
/* Puerto Ricans were generally concerned about the qualifications of Giraud for Miss Puerto Rico Universe, as is demonstrated by the several television shows discussing the photographs.
*/
That section bothers me, as it sounds like a newspaper that misjudges public opinion is more likely to be found liable for infringement, all other things being equal.
I have a hunch that whoever took the pictures didn't bother to get "Kristen" to sign anything. If the copyright owner did not have a model release from "Kristen," I would assume she has something to base an argument on. But her lawyer ought to know the difference between federal copyright law and (New York) state law regarding privacy.
Without reading the full case (which I may do later), I'd say that you are seriously mistaken. Based on the excerpts you provided from the 1st Circuit's opinion, I'd say the crucial element in that case was the use to which the photos were put. They were not, as in Kristen's case, intended merely to illustrate a news story. Rather, they were used with editorial intent, that is, the pictures are the news story. That element of fair use, most crucial to the blogger's question, is not present when it comes to the Kristen photos. Her pictures are not part of the news story (at least, they weren't before the copyright question was raised).
Regarding Max’s comment about Kirsten’s rights under New York privacy laws – I don’t think she’ll have too much luck. New York has no common law right of privacy or publicity. Oddly enough, Kirsten can assert a violation of either of these rights only under N.Y. Civil Rights Law §51.
However, this statute, like its Californian equivalent (§3344) has a “newsworthiness” exception which the courts broadly construe to include not only descriptions of actual events but also articles concerning political happenings, social trends, or any subject of public interest. See Messenger ex rel. Messenger v. Gruner + Jahr Printing and Pub, 94 N.Y. 2d 436, 441 (N.Y. 2000).
As long as a picture is in the context of something “newsworthy” it withstands a claim under §51 – even if it is placed or used in a manner designed to sell the publication. See Ann-Margret v. High Soc. Magazine, Inc., 498 F.Supp. 401 (D.C.N.Y. 1980). Further, courts interpreting statutes like §51 have held that pictures alone can constitute reporting newsworthy items of public interest. See Montana v. San Jose Mercury News, Inc, 34 Cal. App. 4th 790, 797(6th Dist. 1995). While both these cases involve celebrities (Ann Margret and Joe Montana), the core issue was whether the pictures related to a subject of public interest. Regardless of what it might say about our society, I think Kirsetn’s pictures fit the bill.
/* New York has no common law right of privacy or publicity.
*/
I actually had the impression that New York had a very convoluted right of privacy/publicity. But I had no reason the believe that, so I'll take you at your word.
/* As long as a picture is in the context of something “newsworthy” it withstands a claim under §51 – even if it is placed or used in a manner designed to sell the publication.
*/
Fair enough. However, the photographer probably wasn't a newspaper employee. Would Kristen have a claim against the photographer (not the newspaper) as his decision to sell the photo would arguably violate her reasonable expectation of privacy?
/*I actually had the impression that New York had a very convoluted right of privacy/publicity.*/
You are correct. New York does have a convluted right of privacy/publicity -- namely becuase it now views the right of publicty as an aspect of its codified right of privacy statute.
This igonres over three decades of Federal cases that have recognized an NY common law right of publicity. In fact, the common law right of publicity initiated in New York.
In 1953, Haelan v. Topps -- a fed. case that was decided under NY law-- the court was the first to recognize a "right of publicity" seperate from the right of privacy. So for a while NY did enjoy a common law right of publicity. But bizzarly enough, in 1984, in Stephano v. News Group Publications, the court reasoned that since the right of publicity is an offshoot of the right of privacy, which, was exclusively statutory under NY civil rights laws, there was no common law right of publicity. Thus started the convolution...
As for the claim against the photog, that's a good question. I guess we'd have to look at NY Civil Rights Law sec. 51.
/*I actually had the impression that New York had a very convoluted right of privacy/publicity.*/
You are correct. New York does have a convluted right of privacy/publicity -- namely becuase it now views the right of publicty as an aspect of its codified right of privacy statute.
This igonres over three decades of Federal cases that have recognized an NY common law right of publicity. In fact, the common law right of publicity initiated in New York.
In 1953, Haelan v. Topps -- a fed. case that was decided under NY law-- the court was the first to recognize a "right of publicity" seperate from the right of privacy. So for a while NY did enjoy a common law right of publicity. But bizzarly enough, in 1984, in Stephano v. News Group Publications, the court reasoned that since the right of publicity is an offshoot of the right of privacy, which, was exclusively statutory under NY civil rights laws, there was no common law right of publicity. Thus started the convolution...
As for the claim against the photog, that's a good question. I guess we'd have to look at NY Civil Rights Law sec. 51.
So, I'm a bit confused by the matter-of-fact pronouncement that "unless "Kristen" [took the photographs] or unless she got an assignment of rights from the photographer, she doesn't own the copyright."
Could she not be a joint author if she contributed original authorship in the form of posing or setting up the composition of the photos (I haven't looked at them)?
Hi Anon, yes it is theoretically possible, but factually not possible in this case. I know of only one or two cases where the claim has succeeded, and this isn't one for those of us who read the NY Post and saw the photos. BTW, I did a post today, 3/20 on a new case that rejected the defense.
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