As anyone with a computer now knows, the story broke last week of a supposed cache of hundreds of intimate photographs of numerous celebrities, including Kate Upton and Jennifer Lawrence, and Detroit Tigers pitcher Justin Verlander. Over the course of the week, rumors circulated about who, exactly, had them, and whether or where they would be leaked online. The story also raised important questions about privacy, security, and default cloud storage of which many people were simply unaware.
We will leave those questions to experts better versed on the topics. But relevant to our purposes, an appropriation artist “XVALA” (whose real name is Jeff Hamilton) announced plans to exploit the situation in a show entitled “No Delete.” The show will supposedly take place under the auspices of Cory Allen Contemporary Art and The Showroom, located in the Warehouse Arts District in Saint Petersburg, Florida.
The plans apparently are to include life size images of Upton and Lawrence from among those leaked, unaltered, printed on canvas. The larger concept for the show is described by Cory Allen as “the artist’s 7 year collection of images found on Google of celebrities in their most vulnerable and private moments, that were comprised by either hackers or the paparazzi. ‘We share our secrets with technology,” said XVALA. “And when we do, our privacy becomes accessible to others.’” The artist went on, “An individual’s privacy has become everyone else’s business…It has become cash for cache."
What, if anything, will the law say about all this? Hamilton and Cory Allen have rights of expression, and the mere fact of interest in exploiting someone else’s embarrassment will usually enjoy strong First Amendment protection. Likewise, while many states (Florida included) have rights of publicity laws, they are often related to the commercial exploitation of another person’s name or likeness. Art is obviously also commercial, but in the application these laws tend to be strictest with respect to perceived endorsement or unrelated commercial products. This is not to say that one shouldn’t expect Upton, Lawrence, and anyone else victimized to avail themselves of these laws, but is there anything else they can do?
From here, the strongest potential lies in copyright law. For this discussion, assume that some significant proportion of the leaked images were taken by the victims themselves (providing the segue for the Art Law Report’s very first use of the word “selfie”). That photograph, as soon as it was taken, enjoys copyright protection: it is a work of expression fixed in a tangible medium. Remember, copyright's minimal thresshold will not inquire into the wisdom or quality of such images, just whether they fit the bill. These should.
As a result, the photographer-celebrity would have the right to control (i.e., prohibit) the reproduction or distribution of any copy of that image. Anyone making a copy has infringed the copyright. It is also important to remember that copyright formalities are no longer required. One need not write “© Jennifer Lawrence 2014” or register the photo with the U.S. Copyright Office. Registration and formalities help an artist establish that he or she is in fact the author or get statutory damages, but there won’t be much question about who took a selfie in a mirror, or even with an arm extended to the camera.
This brings us squarely back into what seemed to be the ubiquitous topic of 2013: Fair Use. Indeed, Richard Prince’s Canal Zone was comprised entirely of the use of otherwise copyrighted photographs. So as the playing field has slanted in favor of fair use, could XVALA or someone like him simply claim fair use?
My opinion is that a court would likely find infringement. Any fair use analysis is tied to the use in question. Accepting that “transformativeness” has become the overriding factor (we shouldn’t expect a drawn-out consideration of whether the infringement hurts the celebrities’ market for their own private photographs, for example), would a full sized print on canvas of a private photograph be transformative? The proposed use apparently adopts the entire image, unaltered (unlike Prince’s use, for example). And here, perhaps the absence of a transformative intent that actually helped Richard Prince (he expressed indifference as to any particular meaning) will hurt anyone using the celebrity images. Put another way, if Prince saying he doesn’t care what the images means is less important than what he actually did to the Patrick Cariou Yes, Rasta images, then an artist using an image unaltered but declaring that it has a new meaning just because he says so may fail. The medium has changed (print on canvas, not photographic paper or digital screen), but it is hard to envision even the Second Circuit panel that decided Prince as sympathetic to the idea that this would be a transformation. The exhibition, as described, seeks to draw meaning from the fact of the photographs’ availability, not the subsequent act of the copying artist.
This does not answer all the use questions raised by this story, and photographs taken by another person would be a more complicated question. But it could be the shortest route to injunctive relief, in particular—meaning the ability to start to remove the images from public view. The threat of money damages may motivate some potential defendants, but more important to the victims will be such a court order that can be applied to third-party hosts as well as infringers to get them down. Though, perhaps, many affected by the scandal will decide that the best strategy is simply to ignore it and hope that the attention dies down.