Demitria Doubenmier, a student in Jon Pfeiffer’s Fall 2014 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the prompt: “Hey, Those Are Mine. Hillary is a photographer, and Bill an aspiring model who are dating. A couple times, Hillary photographed and recorded video of Bill’s provocative photo shoots. Both Bill and Hillary retained copies of the photos and videos. After they broke up, Bill discovered Hillary had opened an art gallery with the material. While Bill wanted fame, this was not what wanted. But after Hillary’s success, he sold his copies of the images to Hunk Magazine for $1,000 per photo. The former couple sues each other for copyright infringement. Who will win? Who should win from a policy standpoint? Do not discuss privacy law issues.”
In the world of modeling and photography, the lines of copyright infringement can become blurry, where one sees the picture as a possession of the model, and the other sees the photographer as the rightful owner. In today’s arts world though, the photograph generally belongs to the photographer. Most photo shoots involve a letter of consent to use the photographs as the photographer pleases, granting the person behind the lens of the camera ownership of the photo, hence absolving the rights of the model.
In the case of Bill and Hillary, Bill should be sued for copyright infringement. He took the pictures that he had previously showed discontent toward and sold them to make a profit. Without the accreditation and consent from Hillary, Bill stole her creative material and profited without her receiving any of the proceeds.
From a policy point of view, I again think that Hillary has the case won. She had displayed her photos in a gallery and held an art show, clearly depicting the publishing of her work and her rightful ownership. If Bill had the right to sell her pictures of him, then technically prolific photographers who document the plight of people in poverty-stricken neighborhoods could face thousands of lawsuits from strangers. Being featured in a photo doesn’t grant them ownership or copyright protection.
Similarly, one must ask what about the pictures Bill claims ownership over. Identity is not copyrighted, because articles are written about and pictures are taken of politicians and celebrities everyday without their consent. Rarely is legal action ever taken and only if an absolutely slanderous piece is published. An individual’s likeness and name are not copyrighted material. It is the artist who takes the photograph, that photograph being the original material, that the law protects.
Demitria Doubenmier 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.