As has been said by this author on more than one occasion, the "Wild, Wild West" era of the Internet is soon to be identified more precisely as "those thrilling days of yesteryear." Case in point: Celebrities.
A quick tour of the Internet reveals all kinds of "celebrity" Web pages featuring, for example, photos of something-less-than-fully-clothed now-star performers in their old "B" movies or celebrities appearing in public wearing attire which briefly failed to cover all of the anatomy that it was designed to obscure. With the Internet now commonplace and not just the realm of a handful of computer enthusiasts (which it was a few short years ago), the proliferation of that genre of Website has generated a corresponding proliferation of lawsuits against Webmasters who profit from them.
Hopefully, by this time, readers of this publication are conversant with the notion that if what you're using is not "Web legal," you can figure on becoming a defendant in a lawsuit which ultimately can cost you considerably more than your Website is worth. This is no less true where celebrities are concerned and, in fact, is even more important.
To begin with, the hazards associated with posting unauthorized celebrity pictures include all of those risks that are associated with posting any unauthorized picture. For example, if you did not take the picture, you have no right to use the picture as a general proposition unless you have an assignment of the right from the original photographer. That is, if someone takes a photograph, he or she has a copyright interest in its artistry. And if the source of the photograph happens to be, for example, a major motion picture release or a widely circulated magazine, you can bet your boots that copyrights all have been registered and attorneys are in place to enforce them. And unlike some people in this industry seem to think, it is not a defense that you stole the picture from a thief. The derivation of the word "copyright" is just that: a right to copy. The issue is what you copied, not where you copied it from.
Also, the person in the picture has rights of his or her own, as well, regardless of any celebrity status. For example, like many other states, California has a statute prohibiting publication of anyone's name or likeness without his or her consent. That is one of the many reasons why it is standard procedure to obtain a "model release" from any person who is depicted, not just the famous ones.
But where celebrities are involved, much more is at stake. For example, a Sunday school teacher depicted without consent in an X-rated magazine is in a position to sue for substantial damages for mental anguish and injury to her reputation. (If you don't believe that, read a case called Wood v. Hustler.) And a celebrity obviously can have considerably more at stake. That is, tarnishing a celebrity's good name not only implicates the celebrity's personal interests as it would anyone else's, but also his or her business interests.
Celebrities' names are their trademarks. And there is authority for the proposition that associating a non-X trademark with X-rated publications can constitute "dilution" of that trademark, meaning reduction in its commercial value. Finally, a celebrity has an asset in the form of the commercial value of the celebrity's name and persona. For example, how much do you suppose that a breakfast cereal company has to pay for the privilege of plastering a celebrity's face on their boxes?
Along those lines, celebrities have rights in their names, as well. So, Websites that stuff famous names into metatags or embedded text can figure to find themselves in harm's way as well. There is a concept called "initial interest confusion," which comes into play when a Website, for example, uses a well-known term to capture a surfer's initial interest. The surfer types in the name of a celebrity in which he or she has interest but is "confused" by virtue of landing at a Website which has nothing to do with that celebrity.
Finally, there are the morphing people, who put a celebrity's head on an adult video star's body, thereby potentially violating the rights of the celebrity, the X-rated star, the celebrity's film producer and the adult company. None of them look very real, though the most interesting are the ones where the shadow is on one side of the character's face and the other side of his or her body. Violations of this particular type can land you in a whole lot of hot water, especially if you bump up against the prohibitions contained in the Child Pornography Prevention Act, which specifically prohibits morphing where the result looks like it might be a minor.
By this point it probably has occurred to you that there must be a First Amendment right, at least to some extent, for the media to publish pictures of celebrities. Indeed, there is. As an extreme example, it is obvious that the mayor cannot call a press conference to discuss a controversial issue and then sue the local newspaper because the following morning it printed the mayor's photograph on the front page without her consent. Beyond that, probably the reason the mayor called the press conference in the first place was to get his or her picture in the newspaper. What damages are there? Another example, sort of a morph, is found in the political cartoons which include a caricature of a famous politician, the point of which is to make fun of some political view. As the Supreme Court noted in Jerry Falwell's case against Hustler Magazine, this a classic form of political speech.
But at the other end of the spectrum are those who exploit celebrity photographs solely for commercial gain and to the detriment of the celebrity. It is difficult to interject the First Amendment as a defense to that. By analogy, copyright infringement is something which can strip speech of the protections of the First Amendment, just like libel, slander, false advertising, yelling "fire!" in a crowded theater and child pornography. Suffice it to say that some of the "celebrity" sites out there would have a difficult time garnering any protection from the Bill of Rights. Celebrity sites have not gone unnoticed by the celebrities. This should be no surprise, given the fact that celebrities have lawyers, agents, publicists and money, all in proportion to their relative celebrity status.
A case in point is an attorney named Mitchell Kamarck, a partner in a prominent Beverly Hills entertainment law firm. Kamarck, who represents the likes of Alyssa Milano, Carmen Electra, Alley Baggett, Cindy Margolis, Karen Taylor, Amy Dolenz, Rebecca Holden and others, has implemented a veritable assembly line of anti-celebrity-Website lawsuits, all of which were hatched by a campaign said to have been initiated by Alyssa Milano's mother. Apparently thus far undefeated in his series of efforts to vindicate the rights of his various celebrity clients, Kamarck seems to have created a cottage industry in successfully firing potent, celebrity-to-Website legal missiles. If you don't believe him, read his article about it: "Empowering Celebrities in Cyberspace: Stripping the Web of Nude Images," Sports & Entertainment Lawyer, Spring 1998.
When the Internet was in its relative infancy - which wasn't all that long ago, given that the traffic on the Internet doubles every 100 days or so - celebrities had good reason to blow it off as an inconsequential audience. But now that AOL is worth more than CBS, that can hardly be said to be the case. The trend of attacking Internet infringers now seems to be growing at least as fast is the Internet itself.
What's interesting about this is whether any of these celebs could really get their pictures out of circulation. Given the exponentially expanding number of Websites and the fact that a very substantial number of them are overseas, coupled with the proliferation of the Usenet and private E-mails, filing a federal lawsuit every time the picture pops up is like trying to kill a swarm of bees with a deer rifle at 1000 yards; technology is the worst enemy of the censor and every new advance in communication - the printing press, the telephone, the motion picture, radio, television, videotape, the fax machine and the Internet - has caused the world to be armed with more information, including nude celebrity photos. Whether all of this is good will be for another generation to judge.
(Clyde DeWitt is a partner in the Los Angeles, California law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
