Celebrities have found themselves the subject of scandal (or free publicity, depending on your opinion) when compromising photographs are “leaked,” stolen, “accidentally tweeted” and subsequently published on the Internet. Pamela Anderson was purportedly outraged when home video sex tapes were stolen from her home in 1995. But nowadays with cell phone cameras, tablets and unsecure Internet connections, thieves need not physically break and enter to achieve such ends. And it's not just celebrities with worries about private photos being widely circulated—anyone can have their image recorded or stolen and publicized within minutes. Find out what legal remedies may be available to protect you against unwanted publication of your likeness.
When Scarlett Johansson was victimized by a hacker who stole her nude pictures (taken herself) directly from her cell phone, her attorneys wasted no time: they registered the photos with the U.S. Copyright Office and declared Johansson the “copyright owner” of the photos. Next, the attorneys sent out takedown notices to Internet Service Providers (ISPs) and websites, alleging copyright infringement due to unauthorized publication. Naturally, after worldwide circulation, it would be impossible to recall the image from every viewer who may have saved the images to a personal storage device, but the swift action did succeed in curtailing further “broadcasting” of the images. The strategy was the best available in Johansson's case because, as a celebrity, she has limited rights to privacy (because she willingly places herself in the spotlight). She was the one to snap the photographs of herself, and was, therefore, clearly the copyright owner of the photos—so she utilized this right to effect takedown of the photos.
In the case of everyday folk, if faced with this scenario, a claim for violation of privacy could be asserted in addition to copyright infringement. These claims protect the personal interests of everyday people depicted in images, while copyright protection protects ownership interest in the actual photos.
Each of us has a right to control certain uses of his or her identity or image. But because celebrities invest significant resources in their images—indeed, one could argue that a celebrity's image is his or her most valuable business asset—celebrities also have a far-reaching “right of publicity,” which is the right to control all commercial uses of his or her image. Certain First Amendment challenges can be mounted against a right of publicity claim, but commercial uses rarely succeed with such a defense. Celebrities are regarded as cultural, social or political figures open to comment or opinion; just ask Tiger Woods, whose licensing agent, ETW Corporation, lost its right of publicity claim against Jireh Publishing, who sold a poster with three images picturing Woods becoming the youngest golfer to win the U.S. Junior Amateur Championship—a use deemed fair in that case, and therefore not infringing on Woods' publicity rights.
Violation of privacy and wrongful appropriation
While we may not all enjoy strong rights of publicity like celebrities do, everyday people do enjoy an enhanced expectation of privacy over celebrities. A run-of-the-mill case from Missouri shows a straightforward instance of allegations claiming the violation of this right. In that case, a cosmetic surgeon publicized pictures of her patients' breasts on her website to promote her services. The five women in Missouri asserted violation of their privacy against the surgeon for the publication, and also for exposing them to unreasonable publicity (different from a “right of publicity” claim). The basis of a privacy claim is that a person holds certain vital rights regarding his or her private life—any situation in which the person has a reasonable expectation of privacy (since celebrities expose themselves to higher public scrutiny, then, these rights are significantly diminished).
Essentially, the right to privacy is invaded by the following:
- Unreasonable intrusion upon the seclusion of another (ex: photographing someone through the window of their home); or
- Appropriation of another's name or likeness; or
- Unreasonable publicity given to another's private life; or
- Publicity that unreasonably places another in a false light before the public.
Again, the first amendment limits this claim for celebrities who are regarded to have given up this right upon their choice to become public figures. This claim could succeed for non-celebrities against a party who captures a person's image without consent, or against someone who steals an image from, say, a cell phone. For wrongful appropriation, or unlawful commercial use of an image, a stolen image needs be used in a way the person does not approve or did not intend. For example, an image of you sitting in the park drinking lemonade winds up on a billboard promoting the sale of lemons, or even on the website of a nonprofit organization seeking to protect parks and gardens. In these instances, it doesn't matter who snapped the photo or who owns the copyright: without your consent, your rights to privacy have been violated.
In today's world of instantaneous photo posts, computer hackers, and rapidly growing Internet search tools, it may seem like privacy is altogether lost, but the law still provides several ways people can control the publication and distribution of their own images. And in the meantime, for images you don't want to take a chance with—and which you took or commissioned—you always have the option to register the copyright on them.
Whether you have a photo, painting, song or other original work, federally registering a copyright is the best way to get protection and peace of mind. LegalZoom can help you apply to register a copyright today.