California Civil Code Section 1708.8 Privacy Vs. Freedom of the Press

California recently passed an amendment to Civil Code Section 1708.8 that modifies the nature of privacy versus the rights enjoyed under Freedom of the Press. The modification redraws the line that separates where an individual’s privacy rights begin and end. This bill was influenced by a paper written Patrick Alach, a recent graduate of Loyola Law School.

Paparazzi and Privacy by Patrick Alach

A New California Law Places Paparazzi Under the Spotlight by Dionne Searcey, Wall Street Journal, October 29, 2009.

Assembly Bill 524

Privacy rights in general are under assault from many directions according to A. Michael Froomkin:

The Death of Privacy

“The right to privacy and respect for private lives of individuals and their families must be balanced against the right of the media to gather and report the news. The right of a free press to report details of an individual’s private life must be weighed against the rights of the individual to enjoy liberty and privacy.”

California Civil Code Section 1708.8 Modifications:

(a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another person without permission or otherwise committed a trespass in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical
impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.

(b) A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used.

So let’s get this straight: If I am standing on a public street and a celebrity is visible from that public street, but the celebrity is on private property, then I am no longer allowed to photograph them? So merely being on private property, even though the celebrity is still visible from a public domain space, is now off limits because the image was captured using a long lens?

Uh, since when does any person have a reasonable expectation of privacy if they are clearly visible from a public domain space? Am I really breaking the law if I’m standing on a public sidewalk and can see a celebrity engaging in behavior that I decide to photograph? According to this law I am.

Uh, sorry, but a person “engaging in a personal or familial activity under circumstances” that are clearly visible from a public domain space surely isn’t entitled to a “reasonable expectation of privacy.”

A recent example might be Beyonce on the beach in Hawaii. Clearly Beyonce was on a personal vacation. While at the beach, she was buried up to her head in sand and then emerged covered in sand. The images were captured by island paps. Beyonce was certainly “engaging in a personal or familial activity” albeit on a public beach. Is she entitled to her right to privacy. Clearly not.

Fame boils down to one thing: recognition. Becoming famous means being recognized under any circumstances. Recognition does not end the moment you walk off the set or leave the recording studio. It’s 24/7. That recognition erodes your right to privacy. Why? Because what you do in public now qualifies as news. If Beyonce wasn’t in Hawaii yesterday and won’t be there tomorrow, guess what, it’s news. It’s not up to the celebrity to decide whether their activities are news or not. Once recognition is established, ANYTHING that celebrity does is news. Sorry, but that’s the nature of recognition.

If you don’t accept that fact, then pursuing projects that result in worldwide recognition will, beware, cause you endless angst.

(c) An assault committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to subdivisions (d), (e), and (h). (d) A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general
and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the defendant shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section.

(e) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, instigates, induces, or otherwise causes another person, regardless of whether there is an employer-employee relationship, to violate this section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section

(f) Sale, transmission, publication, broadcast, or use of any image or recording of the type, or under the circumstances, described in this section shall not itself constitute a violation of this section, nor shall this section be construed to limit all other rights or remedies of plaintiff in law or equity, including, but not
limited to, the publication of private facts.

(g) This section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other entities, either public or private who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity, the suspected
violation of any administrative rule or regulation, a suspected fraudulent insurance claim, or any other suspected fraudulent conduct or activity involving a violation of law or pattern of business practices adversely affecting the public health or safety.

(h) In any action pursuant to this section, the court may grant equitable relief, including, but not limited to, an injunction and restraining order against further violations of subdivision (a) or (b).

(i) The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law.

(j) It is not a defense to a violation of this section that no image, recording, or physical impression was captured or sold.

(k) For the purposes of this section, “for a commercial purpose” means any act done with the expectation of a sale, financial gain, or other consideration. A visual image, sound recording, or other physical impression shall not be found to have been, or intended to have been captured for a commercial purpose unless it is intended to be, or was in fact, sold, published, or transmitted.

(l) For the purposes of this section, “personal and familial activity” includes, but is not limited to, intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of plaintiff’s private affairs or concerns. Personal and familial activity does not include illegal or otherwise criminal activity as delineated in subdivision (f). However, “personal and familial activity” shall include the activities of victims of crime in circumstances where either subdivision (a) or (b), or both, would apply.

(m) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

Us Weekly Katie Holmes Suri Cruise Crazy 8 Dress Crew Cut Salina Safari Flats Moppit Tights

us weekly magazine suri cruise katie holmes moppit gymboree crazy 8 crew cut

The fashionistas are always hard at work when Suri Cruise debuts a new outfit. Each piece is identified and located within the seasonal catalogs, so mothers around the world can snap up the items for their own darling princesses.

The power of a celebrity wearing a brand’s fashion is enormous. I shot Jennifer Aniston wearing a pair of Stuart Weitzman wedgie shoes and learned that the line subsequently sold out! The monetization of this kind of endorsement has typically involved a relationship between the celebrity and the brand, but perhaps there exists a new business model that forges a relationship between the photographer and the brand. Here’s how it would work:

The photographer candidly snaps the celebrity wearing whatever, the items are identified by brand, the agency contacts the brand and alerts them to the existence of the photographs while simultaneously alerting magazine editors anxious to print the images…and here’s where the new rub comes in: the magazines tip off the agency as to which photos they would run and then the agency contacts the brand to see if they are willing to cover the cost of acquiring the images. Who wins? Everyone! The brand gets their product in print attached to the celebrity, the magazine offloads the cost of buying photos to the brand, and the photographer/agency collects their usual fee for reproducing their images, and the celebrity maintains a relationship to their fan base who pays to enjoy their work.

Is this a corruption of journalistic standards? I don’t think so, as long as the editors and brands have no control over what the photographer shoots. If the celebrity endorses the brand based on their own fashion sensibility or wears a brand based on an endorsement fee paid, then the magazine and photo agency relationship is merely monetizing the reverse side of this relationship. After all, brands have been reaping the rewards of celebrity endorsement without paying for magazine ad space for years.

Whether brands would compete against each other to have images of their brands run over another brand, or join together with other brands in the same image to share the image fee, is secondary to creating a new business model for the magazine business that offloads the cost of using celebrity images. Obviously the image fee for using an image on a website is cheaper than the print version, so it remains to be seen whether magazines will be forced to go all digital with a lowered expectation about potential ad revenues…and survive to earn a decent living.

Lavender Chiffon Ruffle Dress from SS’09 Easter Line from Crazy 8 by Gymboree

Salina safari patent-leather ballet flats

Black and white stripe footless tights by Moppit

Gap purse