A (thigh) Gap in the Law: Addressing Egregious Digital Manipulation of Celebrity Images

• Citation: Vol. 34 No. 3
• Publication year: 2018

A (Thigh) Gap in the Law: Addressing Egregious Digital Manipulation of Celebrity Images

Jessica L. Williams-Vickery
Georgia State University College of Law, jessicalwvickery@gmail.com

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A (THIGH) GAP IN THE LAW: ADDRESSING EGREGIOUS DIGITAL MANIPULATION OF CELEBRITY IMAGES

Jessica L. Williams-Vickery^*

Introduction

In 2012, world-renowned supermodel Coco Rocha agreed to be photographed for the cover of one of Elle's magazine publications, Elle Brazil.¹ Rocha posed for the pictures in a dress with significant cutouts, covered only by a sheer layer of skin-toned fabric.² In keeping with her firm policy of no full or partial nudity, Rocha wore a bodysuit underneath the dress to limit her exposure.³ When Elle published the magazine, the final product shocked Rocha; the magazine had altered the image to remove her bodysuit, giving the impression Rocha had shown more skin than she in fact had.⁴ Rocha took to her personal blog to express her frustration and disappointment at Elle's disrespectful editing.⁵ Unfortunately, this

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problem is not limited to Rocha—she is only one of many models and celebrities who have expressed frustration about excessive image manipulation.⁶

The right to privacy and right of publicity protect individuals' abilities to control when their identities are promulgated and when

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their identities are commercially used, respectively.⁷ But these rights only protect people's decisions regarding when their image is shared by requiring permission; if permission has been granted, the right to privacy and right of publicity do not address individuals' rights to control how their image is subsequently portrayed.⁸

This Note identifies gaps in current relevant law and the resulting need to recognize individuals' right to control not just when their image is used commercially or otherwise, but how it is used. Part I introduces the right to privacy and the right of publicity, and explains the current state of the law in those areas as it applies to digitally-manipulated celebrity images.⁹ Part II then offers a critical analysis of current law and evaluates whether it effectively allows individuals to control how their identity is used.¹⁰ Finally, Part III proposes solutions to the law's shortcomings in an attempt to better protect individuals' right to determine how their identity is publicly represented.¹¹

I. Background

The vast majority of images published in magazines and advertisements are digitally manipulated.¹² Today, the practice of

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image editing is not just commonplace—it is expected in professional publications.¹³ When people permit their photograph to appear in a publication or advertisement, they typically consent to the publisher's use of their image through a model release.¹⁴ Model releases are "liability waiver[s] or exculpatory agreement[s] typically signed by the subject of a photograph granting permission to publish or sell the photograph in one form or another,"¹⁵ and they often contain provisions that allow the publishing entity to alter the licensed photograph as it sees fit.¹⁶

Two legal principles are particularly relevant to the use and modification of a celebrity's image: the right of publicity and the right to privacy.¹⁷ The right of publicity, which developed out of the right to privacy, protects the property interest in the commercial value of one's identity.¹⁸ The right to privacy, in contrast, provides individuals with control over disbursement and distribution of information about themselves.¹⁹ Although there are differences

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between these two rights, they overlap to such a degree that distinguishing them can be difficult, and attempts to label claims as one or the other sometimes causes confusion.²⁰ This difficulty has also extended to determining who may bring a claim based on these rights. Specifically, courts struggled to identify who holds the right to privacy and right of publicity.²¹ For example, courts previously doubted whether celebrities may claim a violation of their right to privacy because they arguably forfeited their right to privacy in exchange for fame and money.²² However, the law now recognizes that celebrities' fame does not undo their susceptibility to "emotional distress or humiliation from an unauthorized exploitation of their name or likeness."²³ Because the right to privacy exists to rectify this type of harm, and celebrities are—despite their fame—susceptible to it, celebrities do have a right to privacy.²⁴ The legal community also wrestled with whether the right of publicity belongs only to public figures or whether it extends to private persons.²⁵ Although celebrities may more frequently invoke the right of publicity, current law states that "the identity of even an unknown person may possess commercial value."²⁶ Accordingly, in most jurisdictions, private persons may bring a claim for violation of their right of publicity if an appropriation of their identity diminishes its value.²⁷ Thus, despite prior confusion surrounding who holds these rights, celebrities and private individuals alike generally hold both the right of publicity and the right to privacy.²⁸

A. Right to Privacy: False Light Invasion of Privacy

In 1905, the Georgia Supreme Court decided the "leading case" nationally in favor of the right to privacy. Between then and 1960,

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many jurisdictions accepted the right to privacy, but there was little consistency regarding its scope and application.²⁹ William Prosser attempted to clarify the law by suggesting four distinct categories of the right to privacy, one being "false light" invasion of privacy.³⁰ This cause of action allows recourse for individuals when objectionable publicity falsely attributes to them "characteristics, conduct, or beliefs" that resultantly invade their privacy.³¹ To successfully bring a claim for false light invasion of privacy, a plaintiff must prove each of the following four elements: (1) the defendant's representation regarding the plaintiff was, in fact, false; (2) a reasonable person would find the representation highly offensive; (3) where the plaintiff is a "public figure," as is generally the case with celebrities, that the defendant had knowledge of the representation's falsity or recklessly disregarded whether it was truthful; and (4) the false representation was publicized.³² Even if a plaintiff successfully proves all elements and has suffered damage, the defendant may assert one of several available defenses in an attempt to evade liability.³³ If a plaintiff succeeds, however, the

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damages awarded are intended to remedy reputational harm and mental or emotional hardship resulting from the false representation.³⁴

B. Right of Publicity

Whereas false light invasion of privacy offers recourse for damage to an individual's reputation or mental and emotional harm, the right of publicity permits compensation for the commercial value of the plaintiff's identity to the degree it was used without consent.³⁵ Beyond monetary damages, a violation of the right of publicity often results in an injunction barring the defendant's further unauthorized commercial use of the plaintiff's persona.³⁶ Although the right of publicity extends to all individuals, celebrities most often invoke its protection.³⁷ To obtain monetary or injunctive relief, a plaintiff must prove that the defendant's conduct constituted "knowing use, without consent, of another's name, photograph or likeness for the purposes of advertising or solicitation of purchases."³⁸ As with false light invasion of privacy, a defendant accused of violating an individual's right of publicity may assert a defense to avoid liability.³⁹

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C. Applicable Precedent

Although the above-stated principles of law include relatively clear elements, their application nonetheless proves difficult. This is particularly true given that the right of publicity and right to privacy are state-defined causes of action and as such vary—typically in minor ways—from state to state.⁴⁰ Within the context of digital manipulation, courts generally hold that consent to image manipulation and publication via a model release bars the subject from bringing a claim against the publishing entity for a violation of the right to privacy or right of publicity.⁴¹

However, this publisher protection only extends to the degree of consent granted in the model release—any use beyond the scope authorized could result in liability for breach of the model release and violations of the right to privacy and right of publicity.⁴² Further, a defendant may be held liable where the model release language is ambiguous and extrinsic evidence successfully proves the defendant violated the parties' intended image use boundaries.⁴³ Conversely, if a model release unambiguously permits the defendant's allegedly improper image manipulation and use, extrinsic evidence attempting to prove a contrary meaning is impermissible; the clear meaning of the model release controls, and the defendant is not liable.⁴⁴

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Although courts most often find defendants liable only where their use exceeds the scope of the model release, some courts have held defendants responsible where their use fell within the limitations of the agreement but "the licensee ma[de] a significant change in the substance of the particular use which [was] licensed."⁴⁵ In applying this "substantial modification" principle, the Russell v. Marboro Books court said of the image manipulation at issue, "[I]f the picture were altered sufficiently in situation, emphasis, background or context, I should think that it would no longer be the same portrait, but a different one."⁴⁶ Because the Russell defendant altered the photo so extensively, the court considered it a different image altogether from the one for which the plaintiff granted consent, and the model release thus failed to shield the defendant from liability.⁴⁷ As the Russell decision demonstrates, courts pay...