Topless Celebrity Photos! Or How To Get Sued Like A Paparazzo

A few weeks ago, I wrote this piece about how artists own the copyright to their work even after they've sold the physical manifestation of that work (i.e. retaining the copyright over a painting even after selling the physical painting to a buyer).  The post generated a lot of interest and in the ensuing discussion, I got several variants of this question:

"If I take a topless photo of [Hot Celebrity Female] at a secluded beach, can she interfere with my ownership over that photo and prevent me from mass producing it and make a mint?"

As with everything in the law, the answer is a resounding "kind of!" Hot Celebrity Female can indeed interfere with your ability to profit from selling topless photos of her to a tabloid... but not through manipulation of copyright ownership (which, I presume, is what the question was really asking). When the subject of your art is another person, they cannot interfere with your ownership of the copyright, nor can they claim ownership rights over that photo simply because they are the subject.  The copyright is vested only in the artist except in these three scenarios:

1. Sale of the copyright to another (i.e. selling the photo and copyright to TMZ)
2. Conveyance of the copyright through a bequest or gift (i.e. giving the photo and copyright to a family member or friend)
3. Certain work for hire situations (usually on projects that require collaboration, like films)

"But," you might ask, "don't celebrities have ownership rights over their personal appearances?"  Nope.  Neither copyright nor trademark law offer protection over your personal appearance.  Trademark law DOES allow you to register many other visual elements such as logos, symbols, patterns, designs - but your personal appearance is not granted any protection under the intellectual property laws of this country.  This means that, unless you sell or gift the copyright, or the copyright isn't yours to begin with, there's really nothing that Hot Celebrity Female can do to interfere with your ownership.  If you are inclined to do so, you are free to take a highly compromising picture of her and sell or license that copyright to TMZ, The Daily Mail, The New York Post, and any other publication that profits from the exploitation of celebrity culture.  You'll probably make a small bounty doing that and in fact, there's an entire group of professional photographers who make their living precisely this way: the paparazzi.

But that's not the end of the story.  Owning the copyright to topless photos of Hot Celebrity Female does not give you an unassailable right to do whatever you please with those photographs.  Even though she has no ownership rights over the photos, she can still take you to court in a big way.  Everyone - from the lowliest plebe to the most glorious celebrity - has a right to a certain degree of privacy, and tort law provides several tools that allow people to fight an invasion of that privacy.

One of the more potent tools that celebs like to use is something called "appropriation of name or likeness."  An appropriation of name or likeness is considered an invasion of privacy when a person uses your name or likeness  for commercial purposes without your permission.  So when you take a compromising photograph of a celebrity, especially in locations where they have a certain expectation of privacy, you open yourself to liability.  That's why paparazzi and the magazines they sell to get sued ALL THE TIME.  Usually, if the celebrity is in a public place, like at a restaurant or on a red carpet, there's little they can do to fight publication of that image, so an appropriation of likeness claim won't go very far.  But when the photo is snapped in a private location (like in their backyards or on a balcony at a remote resort in the rain forest), you could end up losing all the money you made from selling that picture.  Remember last fall when some paparazzo snapped photos of a topless Kate Middleton on a secluded balcony using a telephoto lens? Do you remember the Royal family suing the french magazine that published them?  The magazine lost that battle because Princess Kate wasn't photographed topless at a public beach... she was on a private balcony that was obscured by tree cover.  The only way the photographer was able to get those photos was by using the kind of lens usually reserved for NSA spy satellites.

So the moral of the story... Hot Female Celebrity can't take away your ownership over that photo you took of her.  But she can, in some situations, prevent you from making money off of it.  You, as the photographer, have to decide whether all that trouble is worth it just to catch a glimpse of Kate Middleton's boobs.

Hugo No Go: Why Copyright Net Bots Just Don't Work [Updated!]

Three days ago, fans of science fiction television, film, and literature were watching the online broadcast of the Hugo Awards on video streaming service Ustream. Midway through the broadcast – just as novelist Neil Gaiman was accepting an award for an episode of Dr. Who he had scripted – the broadcast went dark and viewers were confronted with the notice “banned due to copyright infringement.” The program never returned and a torrent of anger and frustration filled the twittersphere. You can read about the whole situation at io9 (thanks to Adam Doyle for the link). So why did this happen?

Because a net bot employed by Ustream determined that the Hugo Awards broadcast violated several copyrights and did what it was programmed to do: shut it down. See, like all awards ceremonies, the Hugos used brief clips of the nominated shows and films. The net bot (just a fancy word for “software”) determined that these clips infringed on the clip owners’ copyrights and cut off the feed. As it later turned out, no infringements had actually been made. The clips had been provided by the rights holders for use in the ceremony and, according to Ustream’s CEO, the net bot hadn’t been calibrated properly to filter out works that were permitted.

Maybe this was a simple case of bad programming, or maybe the bot was doing exactly what it was supposed to do. Either way, this little technical hiccup illustrates a growing problem in the online world: major copyright holders (often they are corporations), in attempting to prevent the unlawful use of their copyrighted material, are turning to net bots to automatically find and disrupt websites that display those materials. Unfortunately, the net bots are taking down lawful works because they can’t tell the difference between works that are in the public domain and those that are copyrighted.

In 2007, Cory Doctorow of The Guardian warned of this impending problem. His main thesis in opposition to these net bots is the difficulty in programming them to take down actually pirated works, while differentiating them from lawful uses. Because these programs cannot tell the difference, they have the potential to disrupt how we communicate. According to Doctorow, the bots “would [] have to be nearly perfect in regards to false positives - every time it misidentified a home movie of your kids' first steps or your gran's 85th birthday as Police Academy 29 or Star Wars: Episode 0, Jedi Teen Academy, your own right to use the Internet to communicate with your friends and family would be compromised.”

Five years later, Doctorow has been proven right. Last month, Youtube briefly removed video of the Curiosity Mars rover landing because it was flagged as an infringing use of copyrighted work by Youtube’s Content ID system, even though the video was uploaded by NASA and was in the public domain. A similar occurrence happened this past February when a man received a bogus takedown notice from Youtube because his nature video contained singing birds in the background, content that Rumblefish had deemed to be copyrighted.

These articles at Ars Technica and Motherboard explain how Youtube’s Content ID system works, and have nice breakdowns as to why the system is so flawed. Part of the reason appears to be a simple technical inability to program the bots to tell the difference between lawful and unlawful uses of copyrighted works. But there's also an element of corruption: automated systems like Youtube’s Content ID heavily favor large copyright holders because they pressured Youtube into having an automated system that went beyond the notice-and-takedown regime established under the current law (the Digital Millennium Copyright Act).

Because of this, Motherboard claims that the system encourages copyright holders to cast a wide net over a vast array of works, some of which are only tangentially related or completely unrelated to their copyrights. “YouTube’s system is [] heavily biased in favor of claimants, and [] is increasingly controlling of content that has serious educational or scientific value... many of Martin Luther King, Jr.‘s speeches are no longer available on YouTube thanks to automatic and manual copyright claims by the owner of King’s speeches, the British music giant EMI Publishing."  

Obviously the benefits to an automated system are cost effectiveness and speedy removal of copyrighted works from a website. But because there is no human being at the other end making determinations as to whether or not a work is being infringed, the little guy often suffers. Forget fair use of someone else's copyright, some people have had their own copyrighted work taken down because it was claimed to be owned by someone else – just two months ago, comedian Brian Kamerer had his video taken down from Youtube because NBC claimed it owned the copyright, despite the fact that Kamerer had made the video and it had been used (without his permission) on The Tonight Show.

I think that copyright law one of the things that make America truly great. Seriously. It sends a message that we as a society prize originality and expression. It says that we understand the value of independence and innovation. It shows that we are willing to allow the fruits of your work to be protected from theft. Certainly, we can all quibble over the specifics of the law, such as duration of the life of the copyright, how much in damages an infringer should pay, or the types of works protected; there are legitimate policy discussions to be had about these things. Even with all that room to argue, I think copyright protections are good for artists, good for innovators, and good for our country as a whole. But when a system isn’t monitored properly or at all, it can start to lay waste to everything it should be protecting. Copyright law is no exception.

[Update: 9:30am, September 5, 2012] Youtube has taken down Michelle Obama's DNC speech from last night because it triggered Youtube's copyright infringement filters.  Ugh.

Filmmaker-2-Filmmaker: Tip 1 – Wiretapping

This is the first in what I hope will be an ongoing resource for up and coming filmmakers.  I want to warn you guys that it’s going to be a bit dry… I’ve fallen asleep twice while writing it.  So if you want to read something fun, take another pass at my Avengers analysis.  To kick off the inaugural Filmmaker-2-Filmmaker, I’m going to talk about something that doesn’t seem like a big deal, but it’s an issue that shows up often in documentaries and reality TV: recording phone calls, or, in legal speech, wiretapping.

Normally when people think of wiretapping, they think of this:

A couple of federal agents sitting in an unmarked van decked out with monitors and microphones listening to phone calls made by gangsters.  But in reality, you see it all the time when your on-air talent makes a phone call while being filmed.  In my producing days, we recorded phone calls for a variety of reasons: maybe a phone call made more logical sense to the narrative we were telling; maybe the person wasn’t willing to be put on film; maybe the person lived in another state and we didn’t have the budget to fly cast and crew to that location for an on-camera meeting.  I once produced a show where we filmed a phone call instead of trying to get a live interview because the subject had a history of violent criminal activity and was an accomplished bow hunter.  It would have been great to get him on screen, but it just wasn’t worth the risk to our safety.

So how do you protect yourself if you want to make an on-air phone call because you either won’t or can’t get your subject live?  The very first thing you want to do is make a good faith attempt to get a personal depiction release from anyone whose voice you want to use – yes, even if you’re only going to use their voice and even if you don’t identify them by name. A depiction release should be a major part of any producer’s arsenal and is the best and easiest way to protect yourself legally. [If you need help drafting one, drop me a line. I’m going to tackle the topic of release forms in a future post.]

But maybe the person won’t sign a release form, or you make an executive determination that trying to get a release would be futile.  Then what do you do?

You determine if you are filming in a one-party or two-party consent state.  Here’s why: if you are in a one-party consent state, as long as one of the phone call participants knows you're filming the call and allows you to film it, you will generally not be subject to criminal or civil penalties, even if the other side does not consent.  Conversely, if you are in a two-party consent state, both phone call participants must allow you to film the call; without consent of both sides to the conversation, you could be liable for civil and/or criminal penalties depending on the state.  Let’s take a quick look at some sample penalties for violating the consent laws:

• Massachusetts is a two-party consent state.  A violation of the consent law carries a maximum criminal penalty of five years in prison and a fine of up to $10,000.  Mass. Gen. Laws ch. 272, § 99(C).  Massachusetts also permits civil suits against persons who violate the consent laws.  Courts may award actual damages, punitive damages, attorneys fees and litigation costs.  Mass. Gen. Laws ch. 272, § 99(Q).
• California is also a two-party consent state.  A first violation of the consent law is punishable by a fine of $2,500 or less and/or imprisonment of less than 1 year.  Subsequent offenses carry a fine of up to $10,000 and a 1-year imprisonment.  Cal. Penal Code §§ 631, 632.  Like Massachusetts, California permits civil suits.  Anyone injured by a violation of the consent laws can recover damages of $5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. The court may also impose an injunction preventing the use of that wiretapped phone call. Cal. Penal Code § 637.2(b).
• In comparison, New York is a one-party consent state and does not permit civil suits against persons who violate the consent laws.

To determine what type of state you’re in, you should check out the Reporters Committee For Freedom of the Press.  This website is a great resource for video journalists and documentarians.  It has a handy chart outlining which states are one-party or two-party, which states have criminal and civil penalties, and will give you detailed breakdowns of how the law works in each of the 50 states.  I used this site all the time during pre-production and principal photography and I like to think that having this handy resource kept my colleagues and me out of trouble.  It’s such an invaluable tool that I’ve gone ahead and placed it on my Resources For Filmmakers page.

The analysis doesn’t end there, however.  You may be in a one-party consent state, but if you have to make a phone call across state lines, it falls into federal jurisdiction.  In that case, you should assume that a two-party consent law applies, even if you’re making a call to another one-party state.

Unfortunately, if you find yourself in a two-party consent situation and one of the parties won’t consent, there really aren’t many workarounds if you need that phone call for narrative purposes.  In the few instances where that happened to me, I simply made the call off-screen and then staged it later with the information gathered from that call (hey, it’s reality TV!).  I want to give a word of caution here: if you’re in a two-party state and you don’t get consent from the party being called, you cannot simply film the call and drop out the sound later.  The criminal and civil penalties are not generally based on whether the other side’s voice is heard, they’re based on whether you knew or should have known about the consent laws and knowingly violated them anyway.

At the end of the day, producers aren’t lawyers.  Even if you have the best intentions and good information, you can still screw up (i.e. recording an interstate phone call without both parties’ consent).  If that happens, don’t try to lawyer yourself out of the situation.  Call me or an attorney you trust and inform them what happened.  There are always ways to protect yourself, even if you step in it.