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Empowering Celebrities in Cyberspace: Stripping the
Web of Nude Images
By: Mitchell D. Kamarck
Periodical: Entertainment and Sports Lawyer
Date: Volume 15, Number 4, Winter 1998
Sex sells in cyberspace and
celebrity sex sells best of all.
More than a quarter of all homeWeb surfers visited a
cyberpornography site in March of last year.
In 1996, cyber-pornography raked in over
$50 million, a figure that is likely to increase five-fold by the year
2000.
The creators of cyberporn sites are
considered the most innovative in both developing the content of the
sites and the marketing of their wares on the Web.
They were among the first people exploiting the Web and were
immersed in the prenatal Web culture of free access and free use of
anything that could be digitalized.
In the chase for the almighty dollar, the
creators of cyberporn sites turned to the ultimate marketing ploy:
nude celebrities.
Celebrities
are one of the major marketing tools for cyberpornography. Almost every single cyberporn site uses celebrities to lure
users to their sites. The
most common use of celebrities to attract users is through the
manipulation of the "spiders," the computer programs that
create the search engines' indexes.
Run almost any female celebrity's name in a search engine and
you will locate hundreds of cyberporn sites; the majority without any
pictures at all of the chosen celebrity.
This is because the majority of cyberporn sites employ a
technique called "spamdexing" in order to influence the
search engines. In its
most common form, spamdexing is the use of hidden text containing
keywords, such as celebrities' names, readable only by the search
engines' spiders.
Similarly, cyber-porn sites often employ
metatags, files attached to particular pages that are readable by the
spiders but not immediately readable by the users,
with celebrities' names to influence search engines.
Thus, a search for a particular celebrity may identify a
cyberporn site with neither pictures or readable text about the
selected celebrity.
Spamdexing and metatags are
popular because the cyberporn sites routinely sell advertising based
on the number of impressions on a Web page.
Roughly speaking, an advertisement will remain on a page of a
site until a certain number of people have visited that particular
page. Thus, the more
people the site can attract to a page on that site, the quicker the
site can meet its impression quota for a particular advertisement and
move onto the next advertisement.
The spamdex or metatags have served their purpose if they cause
users to open a page, even if the users are ultimately disappointed
because the sought after information is nowhere to be found on that
Web page.
Other
sites offer actual nude pictures of celebrities, many of which are
"pasties" or pictures that have been digitally altered by
pasting a celebrity's head onto someone else's body.
If
someone has done a nude scene in a motion picture, chances are that
hundreds of copies of that shot are available on the Web.
Likewise, people with access to the outtakes of such nude shots
download the outtakes onto the Web.
With the advent of the digital DVD format, the ease of copying
film clips and the quality of such
clips will increase ten fold as will the opportunity to create
high quality pasties.
Without quick intervention, a single
celebrity nude shot will find its way onto hundreds of cyberporn pages
as sites copy content off other sites.
Celebrity nudes are often teasers to attract users to subscribe
to a cyberporn site.
The
Problems
A
commonly held belief is that any publicity is good publicity. This transfers over to the Web to the belief that the
exploitation of nude photographs, real or fake, actually assists
celebrities by keeping them in the spotlight.
For a period of time, a "Boycott Page" existed on the
Web supporting a boycott of certain celebrities who policed their
image on the Web. One
comment on that page was "Notice that they did not mind when we
set-up this market [on the Web] for them…or when we kept Alyssa in
the spotlight when her career was in the dumps."
This belief is clearly mistaken.
Celebrities
must care for their image in the same manner as businesses must care
for their trademarks.
As stated by Edgar Allan Poe:
"It is with literature as with law or empire - an
established name is an estate in tenure, or a throne in
possession." Likewise,
for celebrities, image is their stock in trade.
In most cases, failing to police one's image, even on the Web,
will devalue the asset.
Second,
though the Web can promote a celebrity when used properly, it can also
act as a catalyst to destructive behavior by fans.
The Web has taken celebrities from the communal theater to the
loner's home. If a
fan(atic) sees a few seconds of his favorite starlet nude during a
motion picture, he can now run home and pull up the same image on the
Web for viewing for an indeterminable amount of time without the story
context of the motion picture. Moreover, the Web pictures of a fan's
favorite celebrity may be a pastie, depicting a celebrity in sexually
explicit situations. The
effect of this real and fake nudity, isolated in cyberspace, can
adversely affect that small minority of society overly infatuated with
stars.
In
1987, Robert Bardo grew infatuated with Rebecca Schaeffer, the star of
the sitcom My Sister Sam. He
sent her fan mail and even delivered a teddy bear to her at the studio
where the television show was filmed.
His infatuation with her waned in 1988.
However, in 1989, the infatuation was reborn when Schaeffer
appeared in a sexually explicit scene in Scenes from the Class
Struggle in Beverly Hills. He felt that Schaeffer had become just "another
Hollywood whore." According
to him, her fall from his grace truly mattered because he had grown to
know her as if she were a friend:
It
happens 'cause they're in the limelight.…She was very open with her
personality.…When I read those magazine articles, I feel like I know
them [the stars].…It's like they've been with you their whole
life.…To me my victim wasn't a stranger.
As
a result of his disappointment in her,
he stalked and murdered her.
Rebecca
Schaeffer is not an isolated incident.
Other celebrities stalked include Whitney Houston, David
Letter-men, Michael J. Fox, Katarina Witt, Justine Batemen, Debbie
Gibson, Vanna White and Cher.
A 1989 National Institute of Justice
report indicates that in the past 25 years alone, there have been as
many attacks on celebrities as had occurred in the previous 175 years.
One of the foreseeable consequences of the Web is the wholesale
creation of Robert Bardos who become totally immersed in a celebrity
through the vast amount of personal detail, both true and false,
available on the Web. To paraphrase Robert Bardo, excess information begets
obsessive familiarity.
Finally,
celebrities have families, too. There
is a decided difference between a fleeting nude shot in a motion
picture or even a nude layout in a men's or women's adult magazine and
the nude images available to all on the Web.
One of the only companies that services celebrities' Internet
needs, Cybertrackers, was developed by Lin Milano, the mother of
actress Alyssa Milano, after Alyssa's twelve-year-old brother searched
the web for Alyssa and came upon various nude pictures, both real and
fake.
Other celebrities have fought the
pornographic sites because of their children.
A celebrity's lasting legacy should not be a plethora of naked
pictures on the Web.
The
Tools
Empowering
celebrities and taking back their name and image requires a concerted
effort and a dedication to a Web presence.
Not only must the celebrity dedicate herself to cleaning up her
Web image through proactive conduct, but the person must also create a
legal strategy to limit Web problems in the future.
A three-fold strategy is mandated.
Create
a Website
Nature
abhors a vacuum. If a
celebrity does not maintain a quality Web site, a plethora of Web
sites, both good and bad, will be created.
For instance, on amateur sites, often coupled with the nude
pictures of the celebrity, will be fictitious accounts of sexual
exploits with the celebrity - frequently with graphic detail.
As a threshold, most celebrities should maintain a Web site to
supply her fans with information and pictures.
A Web site is a safe, low-cost vehicle for a celebrity to
actually interact with her fans.
It gives fans a place to go that is promoting exactly the image
that the celebrity wants to promote instead of the potentially false
and harmful images and stories available at other sites.
As noted by a commentator regarding various Christine Applegate
pasties available on the Web: "The people who are on those computers, I think, get a
very different message of who she is, and what kind of person she is,
and [her management] work very hard together as a team to make sure
that this career really goes into a path that she wants."
Protect
Rights
Given
the explosion of the Web and the possible adverse consequences,
celebrities should consider the impact of the Web when negotiating
agreements. Some considerations, such as the scope of releases, are
obvious.
Others are not.
Every
agreement which requires the celebrity to shed clothes should
explicitly address the following in the nudity rider:
(1) who owns the copyright in the pictures and/or film; (2)
whether the nude portions of the film will be used on the studio's Web
page to promote the film;
(3) who will have the duty to police the Web for
unauthorized uses of the nude pictures (for instance, Playboy
passionately pursues infringers of its photographs, obviating the need
for the subject of such pictorials to police the Web); (4) if someone
other than the celebrity owns the copyright to the nude pictures,
whether that person or entity will transfer the necessary rights to
the celebrity to empower the celebrity to police the Web.
The Web can no longer be ignored while
drafting agreements. It
is now a growing threat to every celebrity's image.
Attack
Offending Material
Despite
claims to the contrary, locating the offending sites, identifying the
owner and communicating with the owner is not a difficult task. Most sites have an icon to create an e-mail to the webmaster,
the person who manages the site for the owner, and the ownership of
all United States sites can be easily established through the Internic
site.
Moreover, even with the extensive number
of sites, through the use of the computer, hundreds of well-drafted
cease and desist letters can be sent in very little time.
Believe it or not, these letters are effective for the vast
majority of sites. The
webmasters and the owners generally are not sophisticated business
people or attorneys; they have little, if any, understanding of intellectual
property law. For
instance, "The Erotic Home Page of Drew Barrymore" includes
this disclaimer: "All pictures featured on this page were
retrieved from the Internet and are therefore considered to be in the
public domain."
Most webmasters, when faced with a
carefully worded e-mail and legal authority, will quickly and quietly
remove the offending material.
The
following is a non-exhaustive list of legal principles that should be
articulated in such communications and any resulting litigation.
Spamdexes
and Metatags: The
greatest number of exploiters of a celebrities' fame do not publish
any pictures. Rather they
only exploit a celebrity's name for the purposes of attracting users.
Fortunately, they are also the easiest group of exploiters to
convince to cease the exploitation.
Because the removal of any one celebrity's name from the
spamdexes or metatags will not greatly affect the number of users who
access a particular site, the webmasters, once contacted,
will usually remove the celebrity's name.
By
using a celebrity's name in a spamdex or metatag, without any
corresponding picture or content, the cyberporn site is violating the
celebrity's right of publicity, that is, one's right to control and
profit from the commercial use of one's name, likeness, voice,
signature, or other indicia of identity.
For living persons, this right has been recognized in 25
states, including California and New York.
California Civil Code Section 3344
prohibits the knowing use of another's name, voice, signature,
photograph, or likeness on or in products or for advertising goods or
services.
Because many sites use the celebrity's
name in spamdexes for the sole purpose of attracting users, and not to
indicate content on the site,
these spamdexes are a perfect example of a
violation of the right of publicity.
Depending on the context of the
spamdexes, the celebrity might also have claims for false light and
false endorsement.
If the cease and desist letter
fails, a follow-up letter to the individual search engines should
resolve the issue. The
search engine companies are very cognizant of certain Websites'
efforts to create false and misleading information for the spiders to
digest. Many search
engine companies have already developed spiders that avoid spamdexes
and metafiles. Most sites do not want to be identified as a site which
abuses a search engine's spider because of the possibility of the
search engine choosing to delist the site.
Thus, just the threat that the search engines will be notified
of spamdexes or incorrect listings of content should result in more
compliant web-masters willing to remove the celebrity's name from the
spamdexes.
Pasties:
Pasties present the least complex legal issues.
The earliest pastie case involved Esquire magazine pasting Cary
Grant's head onto another model's body for purposes of showing new
fashions.
The court held that Cary Grant had a
cognizable claim for the violation of his right of publicity if
Esquire used his picture "merely to attract attention" to
the article. Moreover,
the court rejected Esquire's First Amendment defense because
"[i]t is not entitled to appropriate his services as a
professional model."
Additionally,
nude pasties, by their very nature, place celebrities in a false
light. The "false light" tort involves a publication which
places the celebrity in a false light that is highly offensive to a
reasonable person.
However, if the cyberporn site discloses
that the picture is a pastie - and some do - a false light claim may
fail.
Of course, in cases with pasties, the celebrity should also
press claims for intentional and negligent infliction of emotional
distress and violation of the right of publicity.
Nudes:
The cyberporn sites' publication of nude photographs or stills
from motion pictures or magazines are the most complex to deal with
legally. A three-prong
attack should be employed utilizing the right of publicity,
false light and copyright law.
A fourth prong, the right of privacy claim labeled "public
disclosures of private facts," should be added if the photographs
have never been published.
For
obvious reasons, the Copyright Act is the best weapon to wield in the
battle. Not only does it
have the strongest remedies, but it also casts the largest net without
exposing the celebrity to the same breadth of discovery.
However, with few exceptions, it is
unlikely that the celebrity will own the copyright in the first
instance. This should not
deter the celebrity from seeking such a weapon for cyberspace battles,
either in the contract formation stage or after the nude pictures
appear on the Web. Certain
copyright owners, in order to promote goodwill, will assign to the
celebrity the exclusive rights to use the explicit picture(s) on the
Web, even if only for a very limited period of time.
By so doing, the celebrity gains standing to institute a
copyright infringement action for all infringements taking place after
the assignment.
The celebrity should always attempt to
obtain such an exclusive license if litigation is imminent.
The
right of publicity is a more complicated legal issue and requires an
introduction to Ann-Margret, the legal posterchild of cyberporn sites,
and her close 'legal relation,' Robyn Douglas.
Their respective rights of publicity
claims were as factually different as were the results.
Actress
Ann-Margret appeared partially unclad in the motion picture Magic,
only the second time she ever consented to appear nude.
She required the scene to be shot on a closed set with the
minimum number of persons present during filming.
Additionally, no stills were shot of the scene.
Subsequently, High Society published a picture taken from the
nude scene.
Actress
and model Robyn Douglas had appeared in Playboy on eight occasions
when photographs of her appeared in Hustler Magazine.
The photographs were taken from two of Douglas' eight photo
sessions with Playboy, including three pictures of Douglas with
another woman. Pictures
that appeared in Hustler had not been chosen for the layouts in
Playboy. Douglas had given Playboy a general release for the
photographs that appeared in Hustler.
While
the court in the Ann-Margret case held that Ann-Margret had no right
of publicity in the picture, the court in the Douglas case held that
Robyn Douglas' right of publicity had been violated.
The differing results are attributable to the following
factors: (1) the Douglas photo-graphs had never been published before;
(2) Douglas had a limited release regarding the photographs (according
to the court) while there was no evidence regarding the extent of
Ann-Margret's release in relation with Magic; (3) the Ann-Margret
court considered her nudity to be "newsworthy"; (4) the
Ann-Margret court considered Ann-Margret's nonowner-ship in the
copyright to be an important element; and (5) the Ann-Margret court
considered High Society to be only "tacky" while the Douglas
court characterized Hustler as "degrading" and
"offensive." In drafting a cease and desist letter or a complaint, you
must carefully distinguish your facts from those in the Ann-Margret
case.
Finally,
as was done by Robyn Douglas, a false light claim should be asserted.
Almost all cyberporn sites present the nude photographs out of
context and without any reference to the applicable motion picture or
magazine layout. As
asserted by Robyn Douglas, the appearance of the photographs
"insinuates that she is the kind of person willing to be shown
naked in Hustler" and that, in itself, was degrading.
The court agreed. The same argument can and should be raised by celebrities in
relation to the cyberporn sites because those sites generally present
the photographs in a degrading manner and out of context.
Conclusion
To
a celebrity, the Web should not represent a vast wasteland where one's
image is constantly mired in quicksand.
The major hurdle is neither locating, contacting, or educating
the offending cyberporn sites, but rather dealing with the vast number
of such sites. However, through the careful creation of cease and desist
letters for the various problems, the overwhelming "numbers"
problem can be dealt with effectively.
This is especially true if you represent numerous clients with
similar problems and can write group letters.
This is not to say that holdout cyberporn sites do not exist,
for they do. But even
they can be dealt with through proper legal means.
To succeed in protecting one's image, two traits are necessary:
devotion and diligence - devotion to policing one's image and
diligence in performing the necessary work.
Mitchell
D. Kamarck, of counsel to Rosenfeld, Meyer & Susman, LLP, in
Beverly Hills, California, specializing in intellectual property and
entertainment-related litigation. Mitchell also teaches a course
entitled Television Law & Practice and Policy at California State
University - Los Angeles. He can be reached by email at
mkamarck@rmslaw. com.
Our Litigation
Department specializes in civil litigation at all levels of the
judiciary, and has wide-ranging experience in litigating business,
commercial and entertainment-industry related matters. We have
extensive experience in accounting and partnership, antitrust, and
securities and corporate litigation. Additional areas of emphasis
include copyright and intellectual property, real estate and products
liability litigation as well as in the appellate practice.
Rosenfeld,
Meyer & Susman was founded in 1957.
The Firm’s areas of expertise include: Labor and Employment
Law, Litigation, Corporate, Entertainment, Trusts and Estates,
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