In a Florida beach town on a late-summer day in 1999, 17-year-old Veronica and her girlfriend were enticed into "flashing" for the camera. While Veronica and the videographer offered differing versions of the conversation leading up to the "flashing," what took place once the camera was turned on is beyond dispute. The footage found its way onto a nationally distributed sensationalist video.
In an unrelated case, 20 years earlier, a burglar had stolen a variety of odds and ends from the home of a neighboring Sunday school teacher and her husband. Included in the items taken was a photo of the fully nude teacher that her husband had taken when they went "skinny dipping" in the "wilderness." The burglar's girlfriend thought it would be cute to trick a popular men's magazine into publishing the stolen photograph, which she succeeded in doing. The magazine, defended by the author of this column, took a pretty good hit ($125,000) that most everyone expected would be considerably worse.
The particulars about both of those events surfaced publicly because, as you probably have guessed, both sued the offending publication. The lawsuits were triggered because the photo of the exposed body parts were associated with the face (and, in the latter case, the name and hometown) of the person photographed. Those are but two examples; there are many, many more.
The images involved in these two cases were not of the type that require labeling and record-keeping under 18 U.S.C. �2257 because they involved only simple nudity (and the image of the Sunday school teacher was made prior to July 3, 1995, so it also is exempt from �2257 for that reason). In fact, most of the legal issues associated with the publication of those two photographs would be identical if the subjects were fully clothed.
This is a topic worth discussion because of the prevalence of this kind of material on the Internet. Sites ? ranging from Mardi Gras women raising their blouses in exchange for beads (likely often induced by the consumption of one too many Hurricanes) to upskirt/downblouse photos taken on Venice Beach ? abound.
As always, however, a review of the basics comes first.
Every image, whether a still or motion picture, has inherently two sets of rights: the rights of the persons depicted and the rights of the photographer. There can be others owning rights in it, such as where there is music (the rights of the composers, lyricists, and performers), where there is a script, and where trademarked goods or services are displayed. Those issues are beyond the scope of this article.
The person who takes a photograph owns a copyright in the photograph, and thereby can both stop others from exploiting it and can recover damages from anyone who has. If the photographer has the good sense to register the copyright (registration and deposit with the Copyright Office of the Library of Congress), statutory damages and attorneys fees also can be recovered from an infringer.
If the photographer makes the image as part of his duties as an employee of a company, then the company is the photographer and the company owns the copyright. And here, "employee" usually does not mean independent contractor. If you want to be sure you own the images made by an in-house photographer, a safe bet is to make sure the photographer is an employee in the truest sense of the word ? payroll deductions, W-2 forms, workers compensation insurance, and so on.
The other way you can obtain the photographer's rights in an image is by some form of agreement. It can be a so-called "work-for-hire agreement," which is by far the safest for the entity acquiring the rights. That creates the same result as if the photographer were an employee, and it is better because it is reduced to writing, and it thereby avoids any claim of independent contractor status. The photographer also can assign or sell you the copyright, or give you one of a variety of licenses (domestic, foreign, or world-wide, exclusive or non-exclusive, in perpetuity or for a limited time, in specified media or all media, etc.). One significant thing here, however, is that, with the exception of the work-for-hire situation of a true employee, any transfer of a copyright interest must be in writing.
Note that the photographer cannot exploit a photograph without the consent of the person in the picture (and the opposite is true as well; the subject of a photograph cannot exploit the photograph without acquiring the photographer's copyright interest). But unlike the photographer's single copyright interest, the subject has an array of interests. Also different is that the subject's legal interests in a photograph can be given up orally, although doing it that way is a very bad idea.
First, everyone has the right of action against publication of that which is defamatory or places them unfairly in a false light. Those concepts are closely related. Defamation is something that injures a person's reputation, while placing a person in a false light is injurious to both reputation and the person himself. Publishing photographs can violate both rights where it inaccurately appears that the person agreed to be photographed nude and/or agreed to appear in an adult publication or on an adult Website. The Sunday school teacher that was the victim of the burglary is a perfect example of that. For the technicians out there, defamation is a collective term for libel and slander; placing a person in a false light is one form of the tort of invasion of privacy, so labeled as a result of curious historical development of the law.
Another form of invasion of privacy occurs when a person's name or likeness is used to promote a product or service without consent. It also could be an unfair trade practice to do so, although a claim that Michael Jordan eats Wheaties would not be deceptive advertising if in fact he does, but General Mills could not make that claim without also having the expensive consent of His Airness.
Another species of invasion of privacy is the public revelation of private information about someone. There is no hard line about what is private. Rather, the test amounts to what people of ordinary senses would deem private. Of course, there are exceptions for public figures who, by the very nature of their publicness, have moved into glass houses. If a religious leader has acquired a sexually transmitted disease, that fact ? which might be private for the average person ? would become fair game for the media.
The common thread running through the above is that, unless there are serious damages, there is little to pursue. For example, if Joe Lunchbucket's photograph were used to promote a product, it would be very difficult to do much about it. The value of his image is minimal, and he likely would be none the worse for wear as a result of the publication. The cost of pursuing the claim would not be justified by the potential award. In other words, no attorney would take the case on a contingency basis. On the other hand, Tiger Woods' endorsement of a product is worth a small fortune; or a jury could run wild about a picture of a nude Sunday school teacher in a men's magazine, just based upon her emotional distress (thankfully, it turned out to be a bench trial instead). But most instances of the vanilla publication of the photo of a non-celebrity don?t cause much damage.
California, along with a handful of other states, has addressed that problem by the enactment of a specific statute:
"Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages." [Cal. Civ. Code �3344].
Of lesser significance is that punitive damages can be recovered under egregious circumstances. Of much greater significance, the statute allows the prevailing party to recover attorneys fees, which is the engine that drives the train. So Joe Lunchbucket gets $750 plus attorneys fees, no matter how happy he might be to have his picture plastered all over the place.
Florida has no such statute, as a result of which Veronica did not do too well in court. Even more strange is that, as a consequence of a bizarre omission of Florida statutory law pertaining to disabilities of minors, her consent was deemed effective even though she was only 17 when she gave it. She would have found different circumstances in most other states, particularly California (where minors by statute must have parental consent to publication of their photographs). Lane v. MRA Holdings, LLC, ___ F.Supp.2d ___, 2002 WL 31940726 (M.D. Fla., November 26, 2002). And the nude Sunday school teacher would have recovered attorneys fees, too. Wood v. Hustler Magazine, Inc., 736 F.2d 1084 (5th Cir. 1984).
A model's consent should be in writing. It should be accompanied by proof of age, and that proof must be carefully scrutinized. It should include acknowledgment that the photo will be used in connection with adult content, if that is to be the case. It should also release all rights of every kind in every medium, presently known or unknown. Most significantly, it should be written by or reviewed by an attorney, for the same general reason that you shouldn't fill your own teeth.
Clyde DeWitt is a partner in the Los Angeles, California-based national 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.
