Piqued by a purloined pug pic, a blogger has told Fox News “that if you want to use a photo or some other content I’ve created on a national TV broadcast, YOU SHOULD ASK FIRST AND YOU NEED TO PAY ME FOR IT.” Another blogger is worried about unauthorized uses of photos she puts on Flickr. And Michael Savage has sued CAIR for “excerpting a four-plus minute portion of the show and posting it on CAIR’s website.” Do the cases have anything in common?
Commenting on the first controversy, Andrew Ratner asks “Is everything on the Internet up for grabs?” I also want to ask: can a pug have a right of publicity? As a normative matter, I’m not as worried by the appropriation of the pug photo as I am by the uses of photos of individuals, and I think the right of publicity recognizes that distinction. . . but I imagine one of our smart commenters will point me to an animal right of publicity case.
But the right of publicity is really about commercial endorsements, and not necessarily the type of intrusion or mischaracterization that the Flickr blogger is worried about. She does not want her pictures repurposed for a blog that will present them in a sexualized light. She appears to want to maintain the contextual integrity of her self-presentation–an idea Helen Nissenbaum pioneered and which I briefly discuss here. I think educators who resist being taped reflect a similar concern–no one wants to end up being the “angry teacher” on YouTube.
Which brings me to Savage. Even if his copyright claim is doomed to fail, should he be able to use some sort of “contextual integrity” claim to insist that his broadcast be related in toto, or not at all? Or to insist that his side of the story be linked to on the CAIR website? I think that once someone puts something out on a radio broadcast, they lose the type of reasonable expectation of privacy that the Flickr blogger had (even if, say, she did not set the Flickr page to restrict access to the photos to those with permission to view them). Moreover, CAIR’s use seems like a classic fair use; the unsavory reuser of Flickr images is not being nearly as “transformative.”
But given the success of Google and Arriba Soft in the 9th Circuit, I would not be surprised to see these sexualized bloggers re-characterizing themselves as “search engines,” providing thumbnail images, and links back to the Flickr pages. At that point they may well be able to win a fair use claim. Even Fox might win if it satirized the supercute pug as one more blue-state indulgence. Which brings me back to my original point: copyright is probably an inadequate tool to stop this repurposing. The types of common-law privacy torts forbidding “appropriation” explored by Bill McGeveran and Dan Solove may work better. Rights to privacy ought to include some prerogatives of reputation management.
Hat Tip: Ann Bartow.