Lauren Herr, a student in Jon Pfeiffer’s Fall 2012 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the question: “You see a famous actress sitting on a barstool in an airport bar and you take a picture of her without her knowledge. Later, when you look at the picture, you notice that she was not wearing underwear. Can you sell the picture?”
I don’t think anyone should be able to sell a picture of someone else without wearing underwear – famous or not. However, it seems that this has been done many times throughout the years and the fact of the matter is that it is completely the actress’ fault that anyone could ever get a picture like that in the first place! If you are a female public figure (or frankly anyone else for that matter) you should always wear underwear when you go out in public. This alone will eliminate this same problem from happening again one hundred percent. Second, the actress should probably learn to sit a little more lady-like. As a public figure, she should be aware that a photograph could be taken of her at any time when she is in a pubic place. She was well aware that she was in a public place at the airport bar and thus did not have a reasonable expectation of privacy and should consider every action she makes (including sitting in a way that exposes herself) in the spotlight.
However, if this situation happened when the actress was at home in her own house and the picture taker used a long lens it would be a different story completely. That instance would definitely be an example of an intrusion of privacy because she would have a reasonable expectation of privacy, no consent to the electronic intrusion, be offended by the picture taken as would a reasonable person, and would be harmed emotionally from the photograph.
Ultimately I don’t think I would ever personally sell a picture like this because I would probably be horrified and delete the picture right away. Because not wearing underwear seems to be a recurring theme for famous females it makes me wonder if it is not a mistake after all, but a stunt to get attention. Whatever the cause, situations like this can happen, have happened, and will continue to happen with little to nothing that the actress can do about it.
Lauren Herr is a senior at Pepperdine University majoring in Media Production / Multimedia Design.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.