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Jeff Bezos has made countless headlines, but legal experts say that doesn’t mean everything about him is newsworthy — especially his nude photos.
Bezos made a bold move last Thursday when he published a series of emails between his lawyer, Marty Singer, and American Media Inc. concerning private photos of himself and his girlfriend, Lauren Sanchez. Bezos’ lengthy post on Medium characterizes the correspondence with AMI as extortion and blackmail. In the emails, AMI tells Singer the National Enquirer has a “below the belt selfie” taken by Bezos and nine other personal images of him and Sanchez. News of the Amazon billionaire’s relationship with Sanchez made headlines around the same time as the announcement that he and his wife of 25 years would be filing for divorce.
While an invasion of privacy claim may be more likely, it’s interesting to note that Bezos in his post points out that he’s the author of his selfies and therefore the copyright owner. He goes on to say his lawyers don’t buy AMI’s argument that the photos are newsworthy because they demonstrate he has terrible judgment and he runs a trillion-dollar company.
So, The Hollywood Reporter canvassed intellectual property experts and asked them to weigh the four factors of fair use with regard to Bezos’ lower selfies.
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes:
“To the extent that there’s a public interest argument it certainly wouldn’t extend to the content of the photos themselves,” says entertainment litigator Ashley Yeargan of Russ August & Kabat. “You can describe the photos without having to show them.”
Kinsella Weitzman entertainment and intellectual property litigator Gregory Korn agrees the photo itself isn’t newsworthy, adding that “it’s essentially just a commercial use. If you call it anything else, you’re just lying to yourself.”
As a lawyer who typically defends these kinds of claims, Fox Rothschild’s David Aronoff says he would argue it isn’t a commercial use — but, he still thinks AMI doesn’t have a winning case. “I think fair use would be pretty much their only defense, and it’s not a good one,” he says. “Putting aside the issue of extortion, do they have a fair use argument to publish the photos? The answer to that is a pretty strong ‘no.'”
The nature of the copyrighted work:
“This is a previously unpublished photo, immensely private, intended solely for two people to look at and depicts him nude” says Korn. “There is a clear expectation of privacy. This factor weighs enormously, if not dispositively, in favor of it not being a fair use.”
The amount and substantiality of the portion taken in relation to the copyrighted work as a whole:
“From the stories I’ve seen, the threat was they were going to publish it in all its glory,” says Korn. “I’ll take them at their word.”
Experts agree any attempt at transforming the photo, via cropping or compiling in a collage, for example, would likely still not amount to a fair use in this case.
The effect of the use upon the potential market for or value of the copyrighted work:
“There was no intent to ever create a market for it,” says Aronoff. “With cases involving unpublished works of this kind, the court looks at that factor in a different way. The author’s right to not publish is just as important as a detrimental effect on the potential market for works that are intended to publish.”
Korn agrees that this factor is a non-issue here, and adds that “to suggest that it’s not ruining the market for the photo because he never intended to sell it would be perverse.”
There’s no specific case law regarding self-photographed nudes, but experts say a 9th Circuit Court of Appeals case regarding a Puerto Rican pop star’s secret wedding doesn’t bode well for a company like AMI in this situation. There, singer Noelia Lorenzo Monge and Jorge Reynoso sued a Spanish-language gossip magazine after it published previously unseen photos of their secret Las Vegas nuptials. The district court granted the magazine’s motion for summary judgment on fair use grounds, but the appellate court overturned that decision in 2012.
“The tantalizing and even newsworthy interest in the photos does not trump a balancing of the fair use factors,” writes circuit judge M. Margaret McKeown. “Waving the news reporting flag is not a get out of jail free card in the copyright arena.”
Specifically, the 9th Circuit found the gossip magazine’s use was “undisputedly commercial in nature.” Even though the photos were only “marginally creative,” the fact that they had been previously unpublished also weighed in the couple’s favor. “The cases addressing the potential market for unpublished works illustrate the importance of letting the copyright owner control first publication,” writes McKeown. “[T]he couple’s intention at the time of the publication did not give Maya license to forever deprive them of their right to decide when, ‘whether and in what form to release’ the photos.” The matter was remanded back to district court, and eventually settled.
As for Bezos, Yeargan notes that he wouldn’t have to win on all four factors to defeat a fair use defense from AMI. “The courts weigh them in a holistic way,” she says.
If the billionaire wanted to register the photos with the U.S. Copyright Office to seek an injunction or statutory damages, there’s a procedure for depositing copies of works under seal. Experts say Bezos could also pursue a claim for invasion of privacy, specifically public disclosure of private facts, and one for the alleged extortion attempt.
“I don’t think there’s a general public interest in nude selfies of public figures going through divorce,” says Aronoff. “The copyright claim is probably the strongest one, the neatest and cleanest way for him to go.”
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