Fabebook and "Droit à l'Image"

I wrote this article (in French) on parents using and posting their children's photographies on Facebook.

Rama Yade Contre la Suppression du Droit à l'Image Collectif (DIC)

La secrétaire d'Etat aux sports, Rama Yade, contre la suppression du droit à l'image collectif (DIC).

La rue (zone) interdite

Right of Publicity & Flickr

An image of Alison Chang, a Texan teenager, published on Flickr, made it all the way to an Australian Virgin Mobile advertising campaign. The teenager is now suing Virgin in Federal Court.

This case is an IP case, as Mr. Wong, Ms. Chang's church counselor who took the picture, and uploaded it on Flickr, under a Creative Commons license. See here for some Lawrence Lessing comments.

What interests me the most in this case are the privacy issues, in particularly Ms. Chang's right of publicity. Unfortunately, Ms. Chang does not have any right of publicity under Texas law. Texas law, Tex. Property Code Ann. § 26.001 et seq., does not recognize a right of publicity for living individuals, even if, curiously, it prohibits the use of images of deceased individuals, up to 50 years after their death... There is no federal right of publicity. Unlike France, the USA do not have a general droit à l'image, right to your own image. Did the fact that Ms. Chang is living in Texas weigh on Virgin's decision to use her picture for advertising purposes?

Happy Slapping & French Law

According to the article 226-1 of French penal code, “ A penalty of one year’s imprisonment and a fine of € 45,000 is incurred for any willful violation of the intimacy of the private life of other persons by resorting to any means of:

1° intercepting, recording or transmitting words uttered in confidential or private circumstances, without the consent of their speaker;

2° taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned.”

Via Legalis comes this decision. A French court, the Tribunal de Grande Instance de Versailles, used the article 226-1 to sentence to one year in jail a high school student who had filmed with his cell phone the attack of his teacher in the classroom. The court also quoted the articles 223-6 and 226.16 of the French penal Code, the “Good Samaritan” articles, incriminating the failure to help a person in danger.

The court did not quote the article 222-33-3 of the French Penal code, (March 7 2007 Law) making “happy slappers” an accomplice to the aggression. The law , however, makes an exception for journalists filming an aggression. Reporters without Borders denounced the law as making a dangerous distinction between journalists and citizens, bloggers in particular.

Indeed, the combination of the article 226-1 and the Good Samaritan law, as the Versailles Court just did, is sufficient to incriminate happy slappers. The inflation of criminal laws voted to incriminate a very precise fact, is a threat to civil liberties. The law should not be used as a political marketing tool, nor as a magic incantation. Vote this law, and thou shall be safe (and reelected).

Article 222-33-2 in French:

Est constitutif d'un acte de complicité des atteintes volontaires à l'intégrité de la personne prévues par les articles 222-1 à 222-14-1 et 222-23 à 222-31 et est puni des peines prévues par ces articles le fait d'enregistrer sciemment, par quelque moyen que ce soit, sur tout support que ce soit, des images relatives à la commission de ces infractions.
Le fait de diffuser l'enregistrement de telles images est puni de cinq ans d'emprisonnement et de 75 000 Euros d'amende.

Le présent article n'est pas applicable lorsque l'enregistrement ou la diffusion résulte de l'exercice normal d'une profession ayant pour objet d'informer le public ou est réalisé afin de servir de preuve en justice.

Vie Privée des Hommes (et des Femmes) Politiques

François Hollande assigne en justice le magazine Choc pour violation de la vie privée. Le magazine avait publié des photos prises durant les vacances du Premier Secrétaire du parti socialiste.

Monsieur Hollande avait également assigné en justice fin août le magazine Closer (in English here). Le Tribunal de Grande Instance de Nanterre avait condamné Closer à verser des dommages et intérêts à la jeune femme prise ainsi en photo en compagnie de Monsieur Hollande, mais n’a pas ordonné l'interdiction de diffusion du magazine en question. Closer avait été le premier magazine à publier en août 2006 des photos de Ségolène Royal en maillot de bain.

Le titre ô combien éloquent du magazine signifie-t-il que nous, public, voulons nous sentir plus proches de nos chers « people » en regardant des photos d’eux prises au téléobjectif, de préférence, en tenue légère et en charmante compagnie ?

Rappelons que selon l'article 9 du Code civil, "chacun a droit au respect de sa vie privée. Les juges peuvent, sans préjudice de la réparation du dommage subi, prescrire toutes mesures, telles que séquestre, saisie et autres, propres à empêcher ou faire cesser une atteinte à l'intimité de la vie privée : ces mesures peuvent, s'il y a urgence, être ordonnées en référé."

You Are A Doll...

Check this site for virtual celebrities paper dolls...A new take on an old idea.I used to love that doll, but Enokiworld no longer dress her up! The poor girl needs a new wardrobe.

Celebrities Need Their Privacy

One particularity of the human animal that differentiates him from others species is his capacity to recognize his own image, and even to become quite infatuated with it, with perhaps some exceptions. We also like to collect images of celebrities, a mere piece of paper being enough sometimes for a teenager to fall in love with an actor. A teenager Judy Garland did just so, declaring her love for Clark Gable singing “You Made Me Love You”, while clutching a picture of the MGM star.

Does the public have a right to know everything about its favorite celebrities? Specialists are making a living following the rich and famous around the globe, capturing pictures from a distance using telescopic photo-lenses, or trespassing a private event, as in the Douglas v. Hello case, EWCA Civ 595 (2004). What distinguishes the celebrities from mere mortals is the fact that their pictures have a commercial value that may pass six-figures, whereas we bore our friends with the slides taken during our last cruise. However, people who are not famous do also have a right to publicity, at least under California law, KNB Enterprises v. Matthews, 78 Cal. App. 4th 362, 367 (2000): “Although the unauthorized appropriation of an obscure plaintiff's name, voice, signature, photograph, or likeness would not inflict as great an economic injury as would be suffered by a celebrity plaintiff, California's appropriation statute is not limited to celebrity plaintiffs.”

Tabloids.

Michael Madow noted in his seminal article about publicity rights , Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Cal. L. Rev. 125 (1993), that “the tabloids are free to profit by keeping the world abreast of Bette Midler’s struggles to control her weight, but an automobile maker may not make unauthorized use of a Midler “sound-alike” in a television commercial”.

Others authors have also noted that the celebrity is not alone creating her famous persona: her agents, the studios, and even the fans’ enduring admiration all concur at creating commercial value , Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan. L. Rev. 1161, 1181 (2006). If I buy US at my local magazine stand, I not only enrich its editor, but also Britney, Jen , and Brad. I contribute to the building of the stars' image, in a positive or in a negative way.

Tabloids can damage the celebrity’s reputation, her image, and thus lower the commercial value of her publicity rights. When images of Kate Moss snorting cocaine circulated, Ms. Moss lost some modeling contracts. However, she quickly gained new ones, signed with brands eager to be associated with her drug-chic image.

Droit à l'image in California?

Great article on paparazzi by Mr. Alan Harnick on the NYSBA site. The article sums up very clearly the tension between newsworthiness & right to privacy. It also cites the California "anti-paparazzi" law, and I wondered: is California is the only U.S. state to have a droit à l’ image?

The California Civil Code protects against the “invasion of privacy to capture physical impression.” According to section 1708.8 (b), “A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.”

The defendant cannot use the fact that no image was taken or no image was sold. Even though these laws are “anti-paparazzi laws,” they also may have a chilling effect on artists, and maybe on press, as Mr. Hartnick notes in his article. Mr. Hartnick notes "the difference, if any, between entertainment and news perhaps should not be left to judges, but to editors."

Have public figures lost their right to privacy? William Prosser believed that public figures had lost “to some extent at least, their right of privacy.” Prosser defined a public figure as “a person who, by his accomplishments, fame, or mode of living, or by adopting a profession, or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a “public personage.”

In France, famous and non famous person alike may protect their rights to their own images. What is a public person for the French law? The Paris Court of Appeal defined it as “a person whose name, photograph and details about her professional life are often published in the press.”

So a person is famous if her image in often published in the press, yet, a famous person has the right to prevent her image to be published in the press, and could then lose her status of "famous person." This definition is good for starlets, but not as convenient for persons who acquired their "famousness" outside of tabloids.

No right to die off cameras?

The Bridge, a documentary directed by Eric Steel, opened this week end in New York. The film shows several successful suicides from the Golden Gate Bridge. The author had installed cameras on the bridge, filming 24/7. I have not seen the film, and do not intend to see it.

I find very disturbing that somebody's last moments would be captured on cameras, unbeknownst to the person. Just before these persons took their own lives, they were denied the right to be left alone, and to oppose the use of their images on screen. I could walk a few blocks from my apartment today, hand over some money, and sit in the dark watching them jump to their death.

I have not found any California laws that could protect them except for the article 1, section 1 of the California Constitution: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. It is poignant to read the words "happiness" and "privacy" so close in this context.

Video bloggers in Europe

I live to watch the new Zazon video every week. The video are candid camera style, but this week, the author commented that it is not so difficult to film, as it is to obtain the droit à l'image. The droit à l’image is not expressly mentioned in any French codes or laws. It is judges who built it by interpreting articles of the Code civil and of the criminal Code. Article 9 of the civil Code declares that everyone has the right to have his private life respected. However, “private life” is not defined, and that vagueness allowed the judges to build the droit à l’ image doctrine. Article 9, coupled with the article 1382 of the civil Code, which is the fundamental article for civil tort claim in French law, creates an action against whomever would not respect somebody else’s private life. There is no need to prove damages, the mere violation of someone private life is enough.

Video bloggers may be soon considered as television programmers in the European Union. I will find out more about it soon.