Monica Fernandez, 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?
I’ve heard the saying go, “If you can see it, you can shoot it.” Obviously, this rule is not as cut and dry as one might assume because of the numerous amounts of cases dealing with the right to privacy with photographs. With almost every person having access to snap a picture in an instant with the camera on his or her phone, the thin line between what is acceptable to photograph and the instances that is overboard has become harder to define.
In this specific case of a freelance photographer using a photograph of myself as an example of “what not to wear” in a fashion magazine, I do not have the right to bring neither the photographer nor the magazine to court. The key detail is that this photograph was taken in front of the Malibu movie theatre, which is public property. The general rule in the United States is that anyone may take photographs of essentially whatever they want when they are in a public place or places where they have permission to take photographs.
There are certainly exceptions to this rule, especially if there is a sign explicitly stating that no photographs are allowed to be taken on the property. In addition, just because a bathroom is considered to be an area of public property, it is not legal for you to take a picture of someone doing his or her business in there.
Another important piece of this case to consider is the context in which the picture was used. Although it definitely would not make me happy if my outfit would be considered as the perfect example of something not to wear, the magazine and the freelance photographer both have the right to his or her own personal opinion. This case cannot fall into the category of libel or false advertisements, which are different grounds that can actually be brought into court.
Monica Fernandez is a senior at Pepperdine University majoring in Political Science and 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.