Privacy, publicity, and identity

Sometimes judges give helpful hints. I think Judge Kenneth Neiman provided one recently when he denied a motion to dismiss in a case about a photograph, Peckham v. New England Newspapers, Inc., 40 Media L.Rep. 1849 (June 4, 2012). The thumbnail sketch is this:

A newspaper photographer took a photo of a motor-vehicle collision showing the victim's arm waving from the wreckage. The victim's face is not visible. After running the story about the collision, the newspaper made the image available for purchase and reproduction on a number of products via its website, as is its practice with other images in its portfolio. The victim sued. The newspaper moved to dismiss, and Judge Neiman denied the motion, thereby allowing the case to go forward. You can read the judge's order denying the motion to dismiss here, and a thorough description of the case in context by the Citizen Media Law Project here.

"Name, portrait, or picture"

So what is the legal basis for trying to prevent the newspaper selling an image in which it owns the copyright?

In the complaint, counsel for the plaintiffs alleged violation of the right to privacy but did not refer to a specific statute. Judge Neiman points out which statute in particular the plaintiffs might want to focus on, namely M.G.L. c. 214, section 3A. This law establishes the right of publicity, which is related to -- but not the same as -- the right to privacy. Unlike the right to privacy, which upholds your right to be left alone, the Massachusetts right of publicity law allows you to control the commercial exploitation of your "name, portrait, or picture." In that sense it is similar to trademark law and the people who sue for infringement are usually celebrities attempting to stop unauthorized advertisers free-riding on their fame.

In some jurisdictions, such as California, the right of publicity is expansive, covering an individual's persona, identity, and voice. Here in Massachusetts, it is narrow, covering only the "name, portrait, or picture." There is no suggestion in Peckham that the newspaper is using the accident victim's name, and no reasonable person would suggest that the image of an arm amounts to a "portrait." To prevail, the plaintiffs will need to show that the image of the arm ids a "picture" of the victim and that selling the image of the plaintiff's arm alone, with no face visible, violates his right of publicity.

I suspect that the outcome of the case will hinge on the definition of "picture." It would have been helpful if, back in 1973 when it drafted the right-of-publicity statute, the Massachusetts Legislature had included the phrase "readily identifiable," but it did not.

So the Peckham case raises three questions: (1) Does the image at issue identify the plaintiff; (2) Does an image that does not identify the plaintiff come within the statutory meaning of a "picture"; and (3) Would the answer be different if the owner of the arm was a celebrity?

Judge Neiman's order mentions the fact that the Massachusetts courts have yet to fully explore the law regarding "newsworthiness."  Let's hope the Peckham case also provides an opportunity to explore the question of when a picture is a "picture" within the meaning of the right-of-publicity statute.