Re the Paparazzi, I've been mulling over an idea that I'd like to share with you. What if a law were passed that established a new sort of trademark—a trademark on the photographic image of a famous face, prohibiting usage for commercial or promotional purposes without permission?
I'm talking about an anti-Paparazzi trademark.
I'd propose the following:
- Any very famous person who could demonstrate to a suitable ruling body that he or she were regularly being harassed by photographers could apply for the "celebmark" for some reasonable term, say two years.
- Under the terms, the subject (let's call her a "she," for simplicity, although it could be a man, woman, or child) should be made to state her main claim to fame: television actress, basketball player, whatever. She could legally be photographed freely while actually engaged in that specified activity, by anyone, whether for commercial use or not, unless constrained by some other rule or law.
- She could also give her legal consent for any images of herself to be used for commercial or publicity purposes, for pay or not, just as she can now.
- Photography of the person not for commercial or promotional usage would still be tolerated just as it is under the law today. So ordinary people could still take snapshots of their favorite stars, and photographers not deliberately including the subject in their photographs could still exhibit and publish their pictures (i.e., just because Jack Nicholson is in the crowd at a Laker's game doesn't mean that he could sue because he incidentally appeared in the background of a photograph of the players).
- Certain events could be declared "celebmark free," such as the Academy Awards. The restriction could also be suspended in cases when the subject is engaged in some activity that might be later determined by the court to be legitimately newsworthy—a definition which would, however, not be extended simply to incidents of bad behavior or inebriation.
- However, when the subject came across her likeness being used for commercial gain by organizations that didn't have her permission to do so, she could sue for this celebrity-trademark violation. A reasonable vigilance would need to be observed, just as it is for trademarks now.
- Individuals going about their daily lives, in the company of their families (especially with minors present) and/or shown in embarrassing or awkward situations or for purposes of public ridicule would be most stringently protected.
Note that the "celebmark" wouldn't prevent the pictures from being taken—just from being used for financial gain based on the identity and notoriety of the subject without the subject's consent.
Not that there might not be some unintended consequences. For instance, aspiring and minor stars might clamor for the protection in order to prove that they are bigger stars than they actually are. Real publicity hounds (and perhaps the odd exhibitionist!) might be exposed as wanting their pictures taken, by virtue of the fact that they don't apply for the protection even though they could.
To prevent holders of celebmarks from enforcing them unreasonably, half of any financial damages awarded could go to the courts (for imposing on their already crowded schedules) and the other half to charity.
What do you think? Would something like that work? And if it's illegal or un-Constitutional here, would it work where it was legal?
© 2008 Michael C. Johnston—all rights reserved
Featured Comment by David Bennett: "Dear Sir, I must apologise for the delay in replying, but this office has been overwhelmed with applications for CMARK status. However, on reviewing your application for the CMARK, I must advise that I require further details of the status of your celebrity because I have been unable to find the crowd scene in the May 12th 2002 episode of 'Friends' to which you refer. Further, while I have been able to locate the Odessa Steps scene in Sergei Eisenstein's 1925 film 'Battlehship Potemkin', my colleagues and I have found it impossible to see clearly into the runaway baby carriage as it careers down the steps so I am unable to accept this as one of your status claims under section B of the application. We have had more success with 'Adult Adventures' and after viewing the indoor crowd scene a number of times we have been able to verify your identity from the parts that were visible. As you are aware, however, this office requires three proofs of celebrity status to support an application and we look forward therefore to receiving a further two. Please be advised that your application has been put on hold meanwhile. Yours etc."
Featured Comment by Steven Scherbinski: "While it's an interesting idea, I think it would run afoul of the First Amendment and several Supreme Court rulings. I also do not want yet another reason to get hassled for taking photographs. A law like this would invariably be expanded. Plus who's to say that those "celebrities" don't want the exposure no matter how much they protest. Being a star nowadays is all about keeping your name in front of the public. As they say, even bad publicity is good."
Featured Comment by Bill Mitchell: "More pointless litigation. The courts are already tied in knots with trivial stuff."
Featured Comment by Robert Roaldi: "Rather than inventing elaborate ways of dealing with the insanity, maybe we should try to eliminiate it. How about this. All celebrities should be forced for some period of time to walk around in public, undisguised, grocering shopping, buying deodorant, etc., until they become commonplace. And then no one will notice anymore and the insanity will stop. Seriously, this celebrity-worship idolatry is toxic. What's wrong with us? What is this a symptom of? Let's cure that disease."
Featured Comment by Mark Probst (a sentiment first mentioned in a longer comment by Lasse): "I don't think we need a law whose only purpose is to protect a handful of rich people."
Featured Comment by Alan Klughammer: "I do like the way you are thinking. Having fewer tabloids screaming for attention at the grocery checkout would be a good thing, unfortunately, as you point out, there are a lot of grey areas. I once heard a quote that I wish more people could live by: 'Don't bug anyone, and don't be easily bugged.' "