USSC 'rules' in right to privacy/publicity vs.1st Amendment case

[john_h.1]

<p>Actually it let stand the lower court ruling allowing certain claims to be made... http://www.cnn.com/2010/CRIME/03/01/wrestler.privacy/index.html</p>

[john_h.1]

<p>The 11th Circuit ruling: http://www.ca11.uscourts.gov/opinions/ops/200816148.pdf</p>

[photomark]

I was prepared to be bothered by this, but given the circumstances, I think most reasonable people would think Hustler

should not be able to use these photos. However, the entire system of bringing bizarre cases like this—pro wresters, nude

photos, murder/suicide—to court and then using the findings to limit more mundane activities strikes me as dysfunctional.

 

Based on only reading this one article, it seems like the court just decided that photos, which most of us would not

consider newsworthy were not, in fact, newsworthy. Does this really change anything?

 

[Edit: John, you post that link while I was writing this post. Thanks, it looks interesting]

[mikael_karlsson]

<p>John:<br /> <br /> Interesting. What does this mean as far as an impact on editorial image usage? Any ideas? Not asking for a legal opinion obviously, just your educated thoughts.</p>

[john_h.1]

<p>I think that a person (or their fiduciary) who sues someone under state right to privacy/disclosure of private facts laws for publishing nude images without permission of the person and the nudity is not related to an otherwise noteworthy issue of 'public concern', then the 1st Amendment "freedom of the press" defense is not going to be viable. At first, at pages 6-7, the court seemed to specifically leave out discussion of disclosure of private facts and discuss commercial appropriation which was unexpected, then it started getting to disclosure or private facts directly (page 18) which makes more sense. This was from a quick reading, however, and I haven't digested it all yet.</p>

<p> </p>

[mikeoday]

<p >My layman’s reading of the judgement would seem to indicate that even images taken in public might have commercial value and the publication of those images solely for commercial gain might be subject to the right to publicity. The newsworthy exception (ie. non-commercial editorial use) would seem only to apply where the images are incidental to the text and not the other way around. </p>

<p > </p>

<p >Does this put into question the editorial publication of the likeness of any non-public official where the text of the article is incidental to the images?</p>

<p > </p>

<p >That is, I would think that the accompanying text of many tabloid photo-exposés could be found to be incidental to the images and as such may impinge on a persons right to publicity (in Georgia anyway).</p>

<p > </p>

<p >And what about calendars, post-cards, photographic prints, etc.? Surely they are not newsworthy.</p>

<p > </p>

<p >Much of the judgement would seem to go contrary to the ‘common understanding’ on this and similar forums that images taken in public can be used for non-commercial purposes without a model release (eg. editorial, calendars, prints, etc.)</p>

<p > </p>

<p >In particular the extract below would seem to be relevant and would seem to give a person the right to control all ‘for profit’ publications of their likeness.</p>

<p > </p>

<p > </p>

<p >“The Restatement (Second) of Torts, however, tempers the right of publicity, providing that:</p>

<p > </p>

<p >No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter, and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or the likeness that the right to privacy is invaded.</p>

<p > </p>

<p >RESTATEMENT (SECOND) OF TORTS § 652C cmt. d (1977) (emphasis added).”</p>

<p > </p>

<p >(page 8, <a href="http://www.ca11.uscourts.gov/opinions/ops/200816148.pdf">http://www.ca11.uscourts.gov/opinions/ops/200816148.pdf</a> ) </p>

[john_h.1]

<p>652C addresses so called commercial/advertisement/promotional/endorsement use, 652D is the disclosure of private facts use. See page 18 of your/our link. I'm not entirely sure why they went into 652C at first but it doesn't seem to be part of the actual holding of the case.</p>

<p>BTW for those who wonder what the Restatements are, its a scholarly and influential compodium of existing and suggested law. A guide of sorts. Many courts adopt the principles that found in the text.</p>

[sarah_fox]

<p>Mark, I agree, as a reasonable person, that the thought of Hustler profiteering off of those photos is pretty disgusting. However, so are the shin-digs that white supremicists like to put on. So are the antics of the Westboro Baptist Church folks who famously picket the funerals of gays, lesbians, and fallen soldiers. All of these people disgust me to the core. However, the only thing scarier than letting them do their thing is to prohibit them from doing so. The US has a long history of not treading on that slippery slope, but events of this last decade have started us in that direction. This ruling is yet another step onto that slippery slope. While I hardly proclaim the US to be the most free country in the world, I think our First Amendment freedoms are still second to none. I hope we don't shred those freedoms too. Few things about our system of law are more important to me than our First Amendment, because without freedom of speech and freedom of the press, everything else can be controlled.</p>

[craig_gillette]

<p>There is no slide on the slippery slope here. The press, in this case, Hustler, has the same obligations to the individual it's always had. The press is not fettered when it has to consider if the material they publish of the most intimate nature, is meeting basic measures of being in the public interest, if it's timely and newsworthy. Instead of seeing this as an attack on the press, this is an attack by an out of control, greedy, corporate entity on an individual.</p>

[photomark]

Sarah, I draw the line at white supremacist's shin-digs somewhere before they burn down my house in the name of free

expression. What I mean is that I have rights to be secure in my person, house, etc and when their first amendment rights

conflict with these rights I would hope that the courts and you would support me.

 

It's the same here. Unless you are unwilling to allow that a right to privacy exists, you will see that there are two conflicting

sets of rights. I didn't find that the court decided against the rights of publisher as much as I saw them upholding the rights

subject of the photos. If there is a slippery slope, then there are in fact two of them—one involving privacy, the other free

expression. A ruling the other way could be seen as further erosion of privacy rights in this country.

 

After reading the opinion posted by John, it doesn't look like the court has really broken new ground. But, I'm not a legal

expert so I can't say that with any authority.

[sarah_fox]

<p>Mark, I do see your point, but you're talking about illegal acts (burning down your house). I suppose I wasn't clear about the shin-digs. I really meant their (legal) demonstrations, in which they break out all their bed linens and throw a parade.</p>

<p>In the case of the Hustler photos, I believe the woman did willingly pose. She later withdrew her consent for the photos to be used, but at that point I think it was more a matter of ethics than the law. Of course we can't expect Hustler to be a very ethical pub, but I don't think they broke the law. As I said, I'm no fan of Larry Flynt (sp?), and I bristle at the thought of objectification of women in any way. However, I do think his First Amendment rights are worth protecting -- because they are the very same First Amendments I have.</p>

[dbcooper]

<p>Good - the USSC and the 11th USCC did the right thing. Hustler's use of the images was obviously exploitative in terms of profit and <em>lack of permission</em> (no model release) to use the images, but at least they're consistent in promulgating their sordid tastelessness. It's too bad that some companies regularly skirt the system (no pun intended) and do this sort of thing, considering resultant lawsuits just part of the cost of doing business, or worse, expect to use them as a vehicle to wear down injured parties either emotionally or financially just to make a buck. Cases like this needlessly clog the court system and prevent more expeditious hearing of cases with actual merit. I hope Hustler is assessed enough punitive damages to seriously discourage them and others from engaging in this kind of business behavior in the future.</p>

[john_h.1]

<p><em>There is no slide on the slippery slope here. The press, in this case, Hustler, has the same obligations to the individual it's always had.</em></p>

<p>I agree. The case supports what has been in statutes and lower court cases for a long time now concerning disclosure or certain very very private material. In this instance a balancing test is applied and if there was some reason the woman's nakedness in the image was a matter of public or newsworthy concern, it could be legitimately published. Does the 1st Amendment slander or yelling fire in a crowded theatre when there is no fire? No. Neither does it protect certain extreme things like showing unconsenting women naked before the public merely for the sake of showing them naked. There has to be some reason.</p>

<p><em>I believe the woman did willingly pose. She later withdrew her consent for the photos to be used, but at that point I think it was more a matter of ethics than the law... ...</em> <em>First Amendment rights are worth protecting -- because they are the very same First Amendments I have.</em></p>

<p>The law was absolutely involved here. There was no contract made where the consideration of consent to show naked images was exchanged for the consideration of money or anything else. Posing is irrelevant. Publishing is the issue.<em> </em> If you adopt an absolutist 1st Amendment position like this you could have your naked image taken by a boyfriend or somebody and, if it were sold and displayed in a magazine online or wherever, you would have no redress based on that absolutist position. Would you agree that the 1st amendment would protect that conduct? I think not.<em><br /> </em></p>

<p> </p>

[sarah_fox]

<p>Hi John,</p>

<p>Well, OK, I pretty much agree with what you've written. I was under the impression this was more of a formal shoot, with requisite agreements.</p>

<p>That said, I still have to wonder whether I have a right to privacy if I take a stroll through my neighborhood in the nude. (Horrible thought -- it's cold and slushy out there!) Similarly, I have to wonder whether I REALLY have a right to privacy when I knowingly pose in the nude for another person's photography. This all presumes that I'm in my right mind, am not drunk or stoned, I'm an adult, and am otherwise capable of informed consent. How far must we go to protect people from their own stupidity or carelessness? Similarly, are there not already much more flagrant intrusions into our privacy that should concern us more? Just wondering, that's all...</p>

[craig_gillette]

<p>Personally, I think photographers have overstepped the bounds of reason in many ways when it comes to other individual's privacy. You do have a right to privacy when you are outside. What may move around some is where those rights are bounded compared to the public's rights to know that which is important, newsworthy, etc. There are physical issues involved. If one is outside, it's true that anyone else present would see anything that happens. But does that automatically and forever mean that should someone happen to be there with a camera, you are forced to have that incident published to the ends of the earth? You are in a slushy place. You fall, for some reason (poor choice of footwear and/or wearing apparel?) you are exposed to the view of everyone. At least to the kid with a camera phone or the random freelance journalist passing by. Not everyone is going to agree that it is reasonable for you to have to live with the exposure, the ridicule, the embarrassment, the reliving of the pain, etc.</p>

<p>Likewise, if someone agrees under a set of circumstances to take pictures, why should that mean that one party can later choose to break those terms and use the images in any way they choose? Or a third party take the images and publishes them (the thread on restoring a hard drive comes to mind, or the operator of a printer makes extra "test" copies and enshrines them in a binder in the back room or passes them on to his or her friends) and now Larry Flynt or someone like him has the unrestrained ability to present them to the world?</p>

<p> </p>

[photomark]

That's interesting Craig. The problem of course would be how one would formalize that sentiment into a law. Take your example of falling

down outside. Clearly people see it, but you are suggesting that in some sense it is private. So, are those people who saw it forbidden to

talk or write about it? If so, are they allowed to tell ten people? 100? When does it become publishing. Mass communication is just

communication with a larger audience, isn't it? So if you want to make this a private event in the eyes of the law you would need some

method of deciding when chatter becomes publishing and that is something which is getting harder to distinguish these days.

 

I think the real problem is that society is a little behind the technology curve. It wasn't so long ago that if Sarah took an embarrassing spill

in the snow and I saw it, the most I could do with that information is gossip. I might decide to get up in front of the crowd at a church

luncheon and relate the story, but it would be considered extremely rude and I would be rightly shunned by my peers despite the fact that

some part of the audience would secretly like to hear about it. Now however there is a disconnect: the part of us that wants the gossip

can get it with little public pressure against it, creating a market for embarrassing quasi-public information. I agree that's unfortunate, but I

can't see how one could use the force of law to stop it without bringing the open society down with it.

[sarah_fox]

<p>Craig, I agree with you about many photographers overstepping the bounds of reason. It's said that with rights come responsibilities. One of our responsibilities, IMO, is to be thoughtful and reasonable in the exercise of our First Amendment rights, for instance by asking permission even when permission is not legally required. It's when we make nuisances of ourselves that there is a public outcry to control our activities. </p>

<p>I personally draw a public/private line. I feel I have a right, and sometimes even a responsibility, to photograph public figures, irrespective of their objections. If they're private figures, like one of my neighbors, I tend to ask permission and respect people's misgivings, without quibbling with them over it. On the other hand, I don't give in to patently unreasonable demands. In the end, I really don't want to make a nuisance of myself.</p>

<p>What I really would hate to see is these sorts of common sense principles engrained into the law. I think we should be able to police ourselves reasonably, so that we have the legal backing, when needed, to fight the battles that really matter.</p>

[john_h.1]

<p><em>I still have to wonder whether I have a right to privacy if I take a stroll through my neighborhood in the nude. </em></p>

<p>Right. Making a voluntary self- disclosure of private information would seem to make the info public.</p>

<p><em>I have to wonder whether I REALLY have a right to privacy when I knowingly pose in the nude for another person's photography.</em></p>

<p>Being naked in front of another person, with camera shooting or not, is not a public disclosure. Again its not the posing, its not the photographing. Its the display or the disclosure to the public that matters. Under your knowingly posing approach, as spouse, significant other, one-night stand mate could take a nude photo of their counterpart and sell the images to a magazine or otherwise splash the images somewhere for all the world to see and the photographed person would be without a remedy. I don't think you would offer that same argument if it were you.</p>

<p>This is why people are able to get injunctions against people selling sex tapes, private autopsy images of relatives ect. being disclosed and the like. Its not the image taking, its the disclosure. That why that invasion of privacy tort is called DISCLOSURE of private facts rather than knowing some private fact or being involved with a private fact. In the case here, permission to disclose the private facts (private parts one might say) was withdrawn BEFORE the disclosure. Indeed, the notice saying the permission was withdrawn takes away any argument that permission was implied when the photography was occurring. Telling someone not to display the images makes the case even stronger, wiping out any notion that posing amounts to permission to display.</p>

<p><em><br /> </em></p>

[craig_gillette]

<p>You need to re-read what I wrote. The person, not only fell but was subject to as they call it a "nip-slip" or an upskirt, etc. The whole point is that those who should have the sense and the decency to not prolong or publish willy-nilly the information have not shown themselves responsible. This isn't a new issue. The civil laws already provide recourse. The laws are already there. The internet simply aggravates the sense of violation. This is not a governmental intrusion. This is an individual hurting another person. It isn't a question of bringing down some vague conception of an "open society." It's more how does an individual protect themselves against a callous and greedy society, some members of which would like to have free reign to behave in outrageous fashion and use the power of the state to protect themselves from the results of their actions. </p>

<p>Brandeis wrote the primary discussion of this well over 100 years ago.</p>

<p>http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html</p>

[photomark]

Craig your euphemistic use of 'exposed to the view' was a little to subtle for my slushy brain.

 

I've read the Brandies paper several times—it lives in a prominent place on my computer.

[craig_gillette]

<p>My "copies" are more ephemeral. Just links, which change from time to time. Having seen previous mention of the case, I have a feeling this is the publication trying to outspend the plaintiff by carrying appeals as far as they can. I doubt there would be any "new" law coming out of this. </p>