Comments on The Patry Copyright Blog: Eliot Spitzer and those Nude Photos

Hi Anon, yes it is theoretically possible, but fac...

2008-03-20T08:16:00.000-04:00

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.

So, I'm a bit confused by the matter-of-fact prono...

2008-03-19T22:38:00.000-04:00

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)?

/*I actually had the impression that New York had ...

2008-03-18T13:56:00.000-04:00

/*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 ...

2008-03-18T13:55:00.000-04:00

/* New York has no common law right of privacy or ...

2008-03-18T09:17:00.000-04:00

/* 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?

Regarding Max’s comment about Kirsten’s rights und...

2008-03-17T19:05:00.000-04:00

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.

Without reading the full case (which I may do late...

2008-03-17T15:25:00.000-04:00

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).

/* Puerto Ricans were generally concerned about th...

2008-03-17T12:35:00.000-04:00

/* 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.

That opinion reads like a court in search of a rat...

2008-03-17T11:42:00.000-04:00

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).