Kara Jensen, a student in Jon Pfeiffer’s Fall 2013 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the prompt: A freelance photographer snaps your picture while you are in front of the Malibu movie theatre. Two months later your picture appears in a new fashion magazine devoted to “what not to wear.” Your photo is featured as the top example of “don’t dress like this.” Should you have any remedies against the photographer? The magazine?
If my picture was taken outside of the Malibu movie theatre and later appeared in a magazine devoted to “What Not to Wear,” I definitely think there would be remedies against both the photographer and the magazine.
While I would initially be upset that my privacy was invaded and that my image was used without my permission, the biggest issue is that both the freelance photographer and the magazine would be profiting off of my image. The freelance photographer would have received payment when selling my photograph to the magazine, and the magazine would be profiting off of each issue sold. For this to be permitted, they each would have needed my signed consent to use my image in a commercial context. Moreover, I should be receiving royalty from both involved parties. That being said, I would still take legal action, as I never would have allowed my picture to appear in the magazine, no matter what the compensation.
What is more, the magazine using my image as the top “Don’t dress like this,” example portrays me in a negative light. Not only is it embarrassing, but it also has the potential to damage my reputation and career. As I work in the fashion industry, it is extremely important to maintain credibility and a positive public image. Even a small article in a relatively new publication could discredit my work, discourage new clients from working with me, and could even result in the loss of current clients. I would consider this article to be libelous and defamatory, and would not hesitate to take legal action.
While the magazine may attempt to defend their article by presenting their First Amendment rights, I do not believe that their rights would be protected in this particular circumstance. In my case, I would demand royalties from the photographer and the magazine, and demand that the magazine compensate for damages. If possible, I would also request that the magazine cease further publication of the issue containing the article.
Kara Jensen is a senior at Pepperdine University majoring in Public Relations.
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.