PhotoDude.com

Sun. Mar 16, 2008

Curate Yourself Before The Media Does

The recent scandal involving Eliot “Ho No” Spitzer and a prostitute has brought a rather interesting aspect of copyright and our web personas to the legal forefront:

Since her identity was disclosed, newspapers and Web sites have splashed photos of Ashley Alexandra Dupre in suggestive poses on front and inside pages. Dupre was known as “Kristen” in court documents accusing Spitzer of paying thousands for prostitutes’ services.

Her attorney, Don D. Buchwald, said she did not consent to the use of her photos in this manner, and the usage may be a violation of federal copyright laws. He said the photos have appeared on commercial Web sites without her consent.

Call girl laments use of exotic photos

I’m not sure what legal grounds she has based on her likeness being used, as she has, even if unwillingly, become a public figure. However, she didn’t take all those photos of herself. Some were clearly snapshots, but at least one looked like an outtake from a professional shoot. In other words, there are multiple copyright holders whose images have been infringed.

Even the snapshots. If you take a quick snapshot of your sister, you have the copyright on that image, and therefore control its usage. If your sister turns out to be an infamous prositutute, you could sell it and make a lot of money for yourself. Or, you could get mad when others use that photo without your permission to spread your sister’s infamy, and make money for themselves.

When a prostitute hired by former New York Gov. Eliot Spitzer was identified Wednesday, news outlets eagerly published photos grabbed from her MySpace profile.

Can they get away with that?

Three attorneys who specialize in copyright law say media organizations are sailing in dangerous waters if they publish a personal snapshot without permission.

“Whoever took that picture owns that picture,” says New York attorney Nancy Wolff. “It’s either an infringement or they [the news outlets] have to make a fair use argument.”

The fair use argument would be a thin one, attorneys say. Fair use cases consider factors such as whether the image has been transformed and whether publishing the image displaces the market for the image, according to New York attorney Joel Hecker.

Press Taps MySpace For Photos Of Spitzer Call Girl

If the market for high-falutin’ snapshots of Britney Spears is a multi-million dollar market (and it is), then these photos were probably worth tens of thousands each. If not more. There’s currently offers in excess of $1 million for this woman to do a nude photo spread.

Yeah, if you’d wanted to, you could have made a lot of money off those photos. So “fair use” is going to be a tough sell in court.

Another New York attorney, Edward Greenberg, who has handled several recent cases involving media outlets that ran unlicensed images, says one consideration is whether the photographer has registered the images with the copyright office, or does so within 90 days of publication.

“Some infringers will intentionally infringe and wait for a letter from a photographer, and there’s a 95 percent chance they’ll never get one,” Greenberg adds.

While it may be true that 95% of infringement goes “unnoticed,” registering the image’s copyright has nothing to do with claiming ownership of the image. A legal and effective copyright is created the instant after you click the shutter. Registering the image with the Library of Congress does indeed offer you lawsuit options (e.g., you can treble damages) you don’t have with an unregistered image … but it is not required to retain an effective copyright, nor to sue someone for violating it.

In other words, every snapshot you’ve ever taken … and then thrown away … has a legal and effective copyright, even though you tossed it.

What’s my point here? Let’s make it more starkly:

In a CNN article that’s been updated on at least one occasion, Mallory Simon details the activity on Dupre’s profiles at both MySpace and Facebook since the time her identity was publicized by the New York Times earlier in the week. According to Simon, “It seemed she was trying to stay one step ahead of journalists, attempting to limit what information they could access.”

The damage control was not limited to deleting scantily clad photographs and embarrassing comments from the past but also involved deleting contacts in her network as well. Simon points out that both Facebook and My Space are used by journalists to gleam background information on their subjects and suggests that, “She was seemingly aware that the press would have access to her friends and every word, photo and comment on her profiles, so she began by deleting connections between her friends on Facebook.”

CNN tracks Ashley Dupre’s social networking activity and provides full report

You are the curator of your online persona, for better or for worse. You may think, who cares if I put these wild photos from that party on my Facebook or MySpace page? Well, you may, if something suddenly happens beyond your control that puts your name in the news. Or, even worse, someone with a name just like yours.

They’re flat out telling you, the first thing we are going to do is scour your Facebook and MySpace page. And all those innocent snapshots may end up being spread all over the world.

And we don’t give a damn about your copyright, because we figure you, lowly individual cowering in the spotlight, will never sue us, Media Megacorp aiming the spotlight.

At some level, I hope Ms. Dupre proves them wrong.