Protecting children from the spotlight of fame: enhancing the California Paparazzi Bill with Registered Personality Rights.
Between 1999 and 2014, California introduced a raft of legislation collectively known as the (anti) Paparazzi laws. In September 2013, Senate Bill No. 606 was signed by the State Governor of California, Jerry Brown. Unlike the earlier bills, which were drafted with the privacy of celebrities in mind, Senate Bill 606 was intended to deal with the very specific problem of paparazzi photographing celebrity children. It was the result of considerable lobbying by various celebrities including Halle Berry and Jennifer Garner; both of whom testified before a state assembly committee as to why they believed this law was necessary.
Eighteen months on from its introduction, the question to be asked is ‘has it been effective?’ We consider the advantages and shortcomings of Senate Bill No. 606 and propose an alternative safeguard that is complimentary to, and which enhances the protection afforded by this Bill.
Despite – or possibly because of – the high profile reporting concerning the adoption of this Bill, there has yet to be any court action based on this law. It is, therefore, difficult to know just how effective the threat of possible litigation has been in preventing this type of abuse. The well-being of children is inevitably an emotive issue; and unsurprisingly, there was much popular support for the bill before and after its introduction. However, amongst the legal profession there has been a more skeptical view. Jenny Brandt on legal blog ‘Above the Law’ concluded this law was ‘effectively meaningless’.1 According to Brandt: ‘Specifically, the statute defines harassment as “knowing and willful conduct directed at a specific child or ward that seriously alarms, annoys, torments, or terrorizes the child or ward, and that serves no legitimate purpose”’ (emphasis added). She then goes on to argue: ‘Surely, taking a photograph of a child even in a way that seriously alarms the child serves the legitimate purpose of capturing newsworthy images (and making the photographer some money)’. If so, it is difficult to see how this Bill can ever effectively prevent paparazzi press from continuing to take pictures of celebrity children.
In a similar vein, Julie Hilden, talking about the array of paparazzi laws in general 2, argues that they are unconstitutional in that they attempt to fetter the freedom of the press guaranteed under the First Amendment of the US Constitution.
The result is the predictable tension between freedom of the press on one side and privacy rights on the other, coupled to legislation that is so broadly worded as to make successful prosecution difficult, at the very least. Is there an alternative, more appropriate arena in which these issues can be considered? What about property rights? After all, the photographers will claim copyright as their own. What can be done for the subject of those photographs in these situations?
Intriguingly, a solution already exists which was created for exactly this type of situation. The Guernsey Image Rights Ordinance (‘IRO’) is currently the most far-reaching personality rights legislation available anywhere in the world. In simple terms, anyone can register their personality as intellectual property. More specifically, parents can register their children’s personalities and thus control the use – or more importantly, prevent the commercial use by others – of any image of the child in question. The law uses the term ‘image’ in an extremely broad sense, to include any visual image, characteristic, mannerism, sound or gesture. The unauthorized use of any image associated with the registered personality for commercial purposes constitutes an infringement – and moves the legal argument into the realms of theft of (intellectual) property. Uniquely, the IRO is backed up by a public register; and the registration of personality is, thus, analogous to the registration of a trademark. This register, and the details contained therein, is central to the demonstration of any subsequent infringements.
In order to meet the requirements of most international conventions concerning intellectual property, the IRO contains certain ‘fair use’ provisions. Examples of this include parody, the arts, comparative advertising, incidental inclusion (within a photograph) and so forth. Critically, fair use provisions also apply for the purposes of news reporting. This latter point raises the inevitable question of what exactly constitutes newsworthy material under the fair use provisions. The answer is not simple, being a finely judged balance of all of the relevant facts on a case by case basis, but hinging fundamentally on issues of whether an article is reported responsibly and is not purely exploitative for commercial gain.
What is important is that without personality registration, a paparazzi photographer has the upper hand by virtue of copyright in the photograph. They can choose to commercially exploit that photograph in whatever way they wish; and it will be up to the subject of the photograph to object, if they can. In contrast, if the subject is a registered personality, then the commercial use of that image by the paparazzi automatically becomes an infringement. If challenged, the burden of proof shifts to the defendant to demonstrate that there was no infringement. They may use a defense under the terms of the fair use provisions. This shift of the burden of proof is significant, enabling the subject of a registered personality to hold the upper hand, and it will be for the photographer to defend their action in court, should the subject so choose.
In theory, a Registered Personality provides a comprehensive mechanism to control who gets to use and exploit the images so registered. In the context of this article, the question arises as how an injunction obtained under the IRO might be enforced in California. Fortunately, California law is helpful in this respect: not only does the IRO share many common aims with Californian publicity rights statutes and common law, but generally speaking California courts will uphold foreign judgments where they are not in conflict with State law or overridden by federal law. 3
As yet, no cases have been brought under this new law; but the expectation is that that an injunction issued under the IRO – particularly when coupled with a money judgement – should be sympathetically considered in a Californian court. What is already demonstrable is that the issuance of cease and desist letters pointing to a valid, albeit foreign, register of intellectual property has proven useful when dealing with infringers based in the US.
Neither Senate Bill 606, nor the IRO have yet been considered in court. However, the IRO arguably goes further than Bill 606 by placing publicity rights more firmly than ever into the arena of property rights. Coupled with the Image Rights Register, it provides unequivocal evidence of what property – in the form of registered personality – belongs to whom and moves the legal arguments into familiar and predictable territory. It is also the single most effective counterpoint to the seemingly un-opposable copyright enjoyed by photographers. For anyone wishing to protect their children’s images against unauthorized exploitation, this really is a ‘must-do’ item that should be part of an overall strategy for dealing with unwanted paparazzi attention.
3 Foreign money judgments should be enforceable in California under the Uniform Foreign-Country Money Judgments Recognition Act. There is no obligation for a Californian court to enforce a foreign injunction, although due courtesy – or comity – is usually extended to compliant foreign jurisdictions. See http://www.icondia.com/library/enforcing-your-guernsey-image-rights-in-california/ for a detailed review.
This note is only intended to give a brief summary and general overview of this area of law. It is not intended to be, nor does it constitute, legal or tax advice and should not be relied upon as doing so.
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© Icondia 2015