Nakedness and Publicity

• Author: Adam Candeub
• Position: Professor of Law, Michigan State University
• Pages: 1747-1790

1747

Nakedness and Publicity

Adam Candeub*

ABSTRACT: Smartphones and similar technologies have allowed

individuals to take pictures of naked medical patients, showering athletes,

and sexual partners and place those pictures, without their subjects’

permission, on the Internet. Illicit distribution of former partners’

photographs, known as “revenge porn,” has received the most attention.

Many states have criminalized the practice, but their laws likely violate the

First Amendment. Because these laws typically cannot be used against

websites or other distributers, these laws cannot stop compromising images’

online proliferation.

This Article is the first to argue that publicity rights provide a better remedy.

These rights typically attach to celebrity features, such as Greta Garbo’s face,

which have market value, and therefore have been overlooked as a remedy for

revenge porn. But, the profusion of Internet porn sites demonstrates there are

interested eyeballs for almost anyone’s naked body. Because these eyeballs can

be leveraged into Internet advertising and promotional revenue, they create a

financial interest that the right of publicity can protect.

In contrast to criminal sanctions, publicity rights offer an efficient private

remedy for revenge porn as well as unconsented to naked photographs from

the locker room or hospital. Unlike other forms of liability, publicity rights fall

outside the Communications Decency Act’s immunity and thus can be used

against websites and subsequent image distribution.

I.INTRODUCTION ........................................................................... 1748

II. UNAUTHORIZED NAKED PHOTOGRAPHY: A TAXONOMY ............. 1753

A.“SELFIES,” “GIFTED SELFIES” & COPYRIGHT ........................... 1755

B.VOYEURISM AND CHILD PORNOGRAPHY .................................. 1758

C.CONSENTED-TO PHOTOGRAPHS & REVENGE

PORNOGRAPHY ...................................................................... 1761

*

Professor of Law, Michigan State University. Thanks to Eric Carpenter, Matthew Mirow,

and Howard M. Wasserman for hosting me at Florida International and for their and their

colleagues’ helpful comments. Thanks also to Michael Sant’Ambrogio and my colleagues at MSU

for their usual thorough review and feedback. Thanks to H.W. Candeub for editing—and, as

always, Julie Taiber.

1748 IOWA LAW REVIEW [Vol. 104:1747

III.CRIMINALIZING DISTRIBUTION OF CONSENTED TO

PHOTOGRAPHY: FIRST AMENDMENT PROBLEMS ......................... 1762

A.INTIMATE PORNOGRAPHY IS EXPRESSIVE ................................ 1765

B.IS REVENGE PORNOGRAPHY PROTECTED SPEECH? ................... 1766

1.The Wiretap Act and Bartnicki .................................... 1767

2.Gossip, Public Disclosure of Private Facts, and

the First Amendment .................................................. 1770

C.A NEW CATEGORY OF UNPROTECTED SPEECH ......................... 1773

D.REVENGE PORNOGRAPHY STATUTES DO NOT SURVIVE

STRICT SCRUTINY .................................................................. 1775

1.Compelling Government Interest .............................. 1775

2.Narrowly Tailored ....................................................... 1778

IV.THE RIGHT OF PUBLICITY AND NAKEDNESS ................................ 1779

A.THE RIGHT OF PUBLICITY AS A REMEDY ................................. 1779

B.COMPARISONS TO OTHER REMEDIES ...................................... 1783

1.Criminal Law ............................................................... 1783

2.Copyright Solutions .................................................... 1785

V.SECTION 230 OF THE COMMUNICATIONS DECENCY

ACT AND REVENGE PORNOGRAPHY ............................................ 1787

VI. CONCLUSION .............................................................................. 1790

I. INTRODUCTION

In the late 1800s, Kodak introduced the handheld camera, the first

capable of taking “action shots.”1 Freed from cumbersome tripod-mounted

studio cameras designed for portraiture, photographers could use handheld

cameras to capture spontaneous, un-posed events hitherto impossible to

record. The contemporaneous development of halftone printing plates

allowed newspapers to reproduce and distribute these photographs.

Together, these technologies transformed society’s sense of physical privacy

as reporters began to shadow the everyday lives of the rich, famous, and

socially prominent—and newspapers propagated their images across the

1. Neil M. Richards, The Puzzle of Brandei s, Privacy, and Speech, 63 VAND. L. REV. 1295, 1301

(2010) (“The new, so-called ‘Yellow Press’ was profiting through a kind of entertaining reportage

featuring more scandal and gossip than before. And the rapid adoption of the portable camera

had begun to make people uneasy about its ability to record daily life away from the seclusion of

the photo studio.” (footnote omitted)).

2019] NAKEDNESS AND PUBLICITY 1749

country.2 This disruption of privacy norms inspired Samuel Warren and Louis

Brandeis to propose the first privacy torts,3 or so the story goes.4

In today’s world, the smart phone, along with the Internet, disrupts

private spaces to a far greater degree than the handheld camera and halftone

newspaper printing plate. Smartphones take naked pictures of hospital

patients, showering and dressing athletes, and former lovers. The web can

distribute these pictures with a speed and efficiency that—to put the matter

mildly—surpasses the old Kodak and broadsheet newspaper.

Distributing intimate pictures of former sexual partners without their

permission, a problem known as “revenge porn”, has received significant

attention from legal academics.5 The vast majority of st ates have outl awed the

practice.6 Revenge porn typically includes distribution of intimate self-

portraits (“selfies”) by those to whom they are given and consensual intimate

2. Dorothy J. Glancy, The Invention of the Rig ht to Privacy, 21 ARIZ. L. REV. 1, 8 (1979) (“In

The Right to Privacy, Warren and Brandeis echoed the general concern of their contemporaries

that ‘recent inventions and business methods’ such as ‘instantaneous photographs and

newspaper enterprise . . . and numerous mechanical devices’ threatened to collect and

disseminate personal information about individuals to the world at large.” (quoting Samuel D.

Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 195 (1890))).

3. Warren & Brandeis, supra note 2, at 197.

4. Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for

Intrusions in Public Places, 73 N.C. L. REV. 989, 1010 (1995) (“In his own classic article on the

subject of privacy, Dean Prosser gave credence to the theory that the Warren and Brandeis article

was motivated by Warren’s annoyance with the Boston newspaper coverage of parties hosted by

his socialite wife and by publicity given to the wedding of a family member.”).

5. The academic literature on revenge pornography is large, with student-written

commentary playing a leading role, perhaps reflecting the greater realization among younger

people of revenge pornography’s pervasiveness and impact. See, e.g., Derek E. Bambauer, Exposed,

98 MINN. L. REV. 2025, 2026 (2014); Ann Bartow, Copyright Law and Pornography, 91 OR. L. REV.

1, 3 (2012); Clay Calvert, Revenge Porn and Freedom of Expression: Legislative Pushback to an Online

Weapon of Emotional and Reputational Destruction, 24 FORDHAM INTELL. PROP. MEDIA & ENT. L.J.

673, 676–77 (2014); Ari Ezra Waldman, A Breach of Trust: Fighting Nonconsensual Pornography, 102

IOWA L. REV. 709, 710 (2017); Amanda L. Cecil, Note, Taking Back the Inte rnet: Imposing Civil

Liability on Interactive Computer Services in an Attempt to Provide an Adequate R emedy to Victims of

Nonconsensual Pornography, 71 WASH. & LEE L. REV. 2513, 2514–15 (2014); Alix Iris Cohen, Note,

Nonconsensual Pornography and the First Amendment: A Case for a New Unprotec ted Category of Speech,

70 U. MIAMI L. REV. 300, 303–04 (2015); Caroline Drinnon, Note, When Fame Takes Away the Right

to Privacy in One’s Body: Revenge Porn and Tort Remedies for Public Figures, 24 WM. & MARY J. WOMEN

& L. 209, 211 (2017); Kaitlan M. Folderauer, Note, Not All Is Fair (Use) in Love and War: Copyright

Law and Revenge Porn, 44 U. BALT. L. REV. 321, 321–22 (2015); Layla Goldnick, Note, Coddling

the Internet: How the CDA Exacerbates the Proliferation of Revenge Porn and Prevents a Meaning ful Remedy

for Its Victims, 21 CARDOZO J.L. & GENDER 583, 585–86 (2015); Joseph J. Pangaro, Note, Hell Hath

No Fury: Why First Amendment Scrutiny Has Led to Ineffective Revenge Porn Laws, and How to Change the

Analytical Argument to Overcome This Issue, 88 TEMP. L. REV. 185, 186 (2015).

6. Forty states have enacted some form of revenge porn law. 41 States & DC Now Have

Revenge Porn Laws, CYBER C. R. INITIATIVE, https://www.cybercivilrights.org/revenge-porn-laws

(last visited Mar. 13, 2019).