Celebrity Nude 'Art' Exposes the Limits of the Law (Guest Column)

What the Vietnam War and patent trolls have to do with recently stolen photos of Jennifer Lawrence and Kate Upton

As we all probably know by now, numerous female celebrities were recently victimized by hackers who stole copies of intimate photos and posted them on various corners of the Internet where commenters gawked at the pictures and derided the women for their poor judgement. Last week, a Florida artist took it one step further and announced plans to display unaltered and uncensored copies of the stolen, graphic photos of Jennifer Lawrence and Kate Upton at an October art show. He explained his publicity stunt as artistic “commentary” on “individual privacy in the digital age.” (The artist canceled his plans after a significant backlash.)

But what about the next “artist” or publisher who wants to profit off hackers’ criminal invasions of these women’s privacy? Can the law stop further publication of stolen photos? The answer is “not really.” And for that, celebrities can blame two unlikely sources: the Vietnam War and patent trolls. Let me explain.

First things first: the fact that the photos were obtained by obviously criminal activity does not itself prevent publishers or artists from using the photos. This may seem counterintuitive — after all, if a thief breaks in to your house and steals a piece of your jewelry, an artist cannot then buy the stolen jewelry from the thief and display it as “artistic commentary” on an “individual’s security in this age of crime.” As appealing an analogy as this might be, it does not work here.

As a general matter, the First Amendment has been interpreted to forbid “prior restraints,” i.e., court orders stopping publication of almost all matters except in very limited contexts (one of which I discuss below). Even if the information to be published was stolen and then given to a publisher who knew full well it was stolen, the Constitution forbids a prior restraint of the publication. The best example is the famous “Pentagon Papers” case from 1971. There, the Supreme Court refused to enjoin The New York Times’ publication of the highly classified Pentagon Papers. According to the government, the Pentagon Papers contained top secret information about war plans in Vietnam and Southeast Asia. The Papers had been provided to the Times by Daniel Ellsberg, who had secretly copied the documents in violation of his security clearance. That Ellsberg had (allegedly) committed a crime in copying the documents, and that the Times knew he had committed a crime in copying the documents, did not justify a prior restraint.

In 2001, the Supreme Court extended these principles when it held that a politician whose cellular phone conversations had been illegally recorded could not even sue a publisher for money damages when the publisher knew the conversations had been obtained illegally. So long as the publisher did not solicit the commission of a crime, statutes providing for money damages remedy (but no injunction) were still held unconstitutional as applied to publishers.

Every rule has exceptions, even the rule against prior restraints. Although the Supreme Court has never called it an “exception” to the rule against prior restraints, the Court has obviously permitted injunctions against publication of copyrighted images or texts. Such injunctions are most certainly prior restraints (as several copyright and First Amendment scholars have recognized). So, could copyright law help out celebrities like Lawrence and Upton from having their private photos published by artists or others? Maybe, but it would come at a cost.

In order to sue for copyright infringement and seek an injunction against publication of the images, a copyright in the images would have to be registered with the U.S. Copyright Office. In so doing, the celebrities would probably have to identify the person who took the photos (a very private fact itself in many cases) and they would have to deposit a copy of each photo with the Copyright Office. For obvious reasons, this might not be a particularly desirable option.

Even worse, there is no guarantee that a federal court would issue an injunction to stop the publication of the copyrighted images. While injunctions used to be relatively routine in copyright cases, that all changed in 2006 with the Supreme Court’s decision in a case called eBay v. MercExchange. That case was a patent case where a so-called “patent troll” sought a broad injunction against eBay despite the fact that the plaintiff did not have a real, competing service. After an appellate court inexplicably said that the patent-holder was entitled to an injunction (despite the trial court’s common-sense ruling to the contrary), the Supreme Court threw out decades of existing law from the lower courts on injunctions in intellectual property cases. No longer would injunctions be the presumed remedy in patent and copyright cases, but plaintiffs would have to offer proof of “irreparable injury” absent an injunction, a balance of hardships in the plaintiffs’ favor, and the public interest favoring an injunction.

Although I would predict that most federal courts would find that these factors weigh in favor of granting an injunction in favor of the celebrities — given the very serious invasion of their privacy interests — no competent lawyer could possibly guarantee such a result (particularly in light of the fact that the photos have already been widely distributed and, thus, a money damages remedy might suffice). Given that there are no guaranteed results, the victims of the hacking might, quite reasonably, choose that it is not worth the trouble of getting the photos registered with the Copyright Office (with all the attendant consequences of doing that).

In short, the law is ill equipped to deal with this issue. People should look instead to technology companies to take better measures to secure cloud-based storage. Furthermore, people everywhere should refuse to do business with any publications who would publish these pictures, given the invasive and criminal circumstances under which they were obtained. As with the Florida artist who ultimately decided not to engage in “artistic commentary” by further disseminating the pictures, publications might also decide against publishing the pictures if the public makes it clear that attempts to profit off of such invasions of privacy will not be tolerated, even if the law allows it.

Jonathan Steinsapir is a partner at the entertainment and intellectual property law firm Kinsella Weitzman Iser Kump & Aldisert in Santa Monica. He has handled all phases of complex intellectual property disputes, including dozens of copyright, patent and trademark cases in federal courts throughout the country.