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Thursday, 26 June 2008

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On first read it sounds like it might work, but I'd have to stew it over for a while. I'm sure the tabloid lobby would object violently this type of protection.

Then again, wouldn't life be boring without all of the embarrassing photos of Britney Spears....

Have you've just invented a new industry?

Mike,
What commercial purposes are you really expecting such photos to be used for?

The one related to paparazzi I can see is News/Tabloids, and I think any such legislation would clearly run afoul of US 1st Amendment issues. Neither Congress nor the courts are granted rights under the Constitution to decide what is "legitimately" newsworthy.

Other commercial use (unendorsed product promotion) would already be an illegal use of the celebrity's image, without first obtaining a release.

And why create law solely aimed at celebrities? This almost sounds like just a slight expansion of existing anti-stalking statutes... Why not create a more general privacy law, allowing people who feel their being harassed and their privacy violated specific legal remedies?

There would need to be more clear intent to harass: parking near a celebrity-frequented night club would not be in violation, but (say) repeatedly chasing after a clearly unwilling subject would be.

I don't think it's the paparazzi per-se that are a problem, but those that go to any lengths to get a shot.

It would have to be applicable worldwide to be effectiven and even then how would govern the internet. Printed ink already bleats incessantly about how the internet is ruining the magasine market. Anyway the celebs court publicity when it suits them. Live by the sword, die by the sword.

And a futher random ramble. You were not the only on who didn't know who Mathew Whats-his-name was. The Celebs and their fans live off each other. I have had 'Famous' soap stars pointed out to me in restaurants. If these 'Famous ' stars had bitten me I still wouldn't have known who they were.

When I was first spammed offers of a tape on Paris Hilton I had absolutely no idea what it was about. Naively I assumed it was an ad for the Paris Hilton Hotel.

What if a person that has a celebmark did something truly newsworthy, which the celeb themself wouldn't want published? Someone could get a celebmark and then get into politics giving them the ability to control their public image better than their competitors.

People should be treated equally. The rich celebrities shouldn't have any special rights compared to anyone else. They can already get away with murder if they have enough cash.

Paul,
I found out why I'd never heard of Matthew McConaughey. I checked on IMDB (at the prompting of a reader) and not only have I never seen any of the movies he's been in, I've never even *heard* of any of them except one (one I didn't see, although I already told you that). Guess that's why I didn't know who he is.

Mike J.

Not sure, but I think that is indeed close to the law in France.

Mike, do you consider that journalists makes "commercial usage" of photographs ? How do you establish a clear separation between a photo reporter and a paparazzi ? Celebrities range from starlets to CEOs of mutinational companies, and I wouldn't like to see these people oppose their trademark against a photo reporter. (sorry for the bad english).

Think of the consequences if politicians (specifically persons holding public office) apply for and obtain a celebmark. So we exclude politicians from the law, but then I say who decides what professions are in and what professions are out and the whole thing just begins to seem arbitrary and taylor made to an elite group. Doesn´t feel like justice to me so my gut feeling is that the idea would get approved in Congress in about 5 minutes.

Honestly, I find it extremely difficult to work up much sympathy for the plights of either paparazzi or celebrities; I think your thoughtfulness is wasted on them (the latter especially). Perhaps being harassed by the paparazzi is one of the reasons for celebs' obscene compensation, which in most cases seems vastly out of proportion with what they bring to society--especially in ligh of what scientists, police officers, firemen, teachers, etc. earn.

i don't know about this. if you're a street photographer who has managed to catch a celebrity with a certain nuance of expression or an act which was visually interesting in the traditional street photograph sense, and the photo was published in a magazine along with the rest of your portfolio in an editorial, would that violate the celebmark? would you have to argue that you had some artistic intent, because the subject of the photo is clearly the celebrity in question performing a particular (although not necessarily defamatory) act? btw, i'm not a lawyer so i don't really know how these things work. i actually want to find out more about it and hope someone can fill me in on the details.

i also don't quite get what you mean by commercial gain. does the publishing of an editorial layout not on the cover of a magazine constitute commercial usage? i don't think it does so now.

there are countries with more stringent privacy protections on the subject's image, such as germany and france, and i believe they have specific provisions on public figures and public interest. i don't know whether there are paparazzi-based tabloids in those countries, i rarely pay attention to those magazines in countries that do. how do they go about it?

Mike,

This is not good; the very fabric of society would be rent asunder and trampled underfoot........celebs would have to shut up, or stop letting their bosoms escape. Ohhh, what an insidious proposal!

Bron

P.S., I would miss the occassional escaped bosom.

Then again, wouldn't life be boring without all of the embarrassing photos of Britney Spears....

no

Just to be clear, we're going after tabloids, not paps. If I take a group shot that happens to include Jack Nicholson, and someone takes the image I've posted on the web and crops it to feature him, I'm not liable. If this cropped image appears on another web site, do we have ways to distinguish commercial from non-commercial and the means to collect from international scofflaws?

Also, if this works as well as we hope, what will I read while I'm waiting to pay for my groceries?

Hopeless on 1st Amendment grounds in the US. And rightly so.

No I think we should skip all that and start pummeling anybody who tries to separate me from the tools that feed my family. And I mean by any means necessary.
These celebrities build their careers on our back, use us when they want to and then show disregard and disrespect when we are trying to make a living. These surfers did not meet up on the right photographer. There is a saying in my country, "ghosts know who to frighten," enough said.:-)

There's an awfully wide gray line between legitimate news reporting, e.g., of an individual's arrest for public intoxication or driving under the influence, and "...shown in embarrassing or awkward situations...". I suggest that a photograph accompanying and illustrating a CNN news story would be exempt, but use by a celebrity tabloid with a headline exaggerating the truth would be prohibited. At least that's the objective.

Unfortunately the tabloid press is still, in the U.S.A., the press, with the rights that status confers. I'm unwilling to surrender the ability of the press to report on what they judge newsworthy to preserve the privacy of a public figure.

Consider the chilling effect of a political figure's ability to invoke celebmark status against photos published by the New York Times and CNN documenting an association with a known mobster. I doubt the politician would win, but the cost to defend the lawsuit would be very high.

And the lawyers make more money.

Having expressed my concerns, I'd like to suggest automatically extending celebmark protection to the immediate family of a person who qualifies. The absence of a famous mother from the school playground shouldn't mean paparazzi can photograph her children.

And I agree that the idea, while it has merit, is very unlikely to be enacted in the U.S.A.

Bob

I can't help but feel that the real beneficiaries of the scheme would be the lawyers.

Aside from that, it may actually be workable within a the borders of say the USA, but what about an American celeb, photographed on a Cuban beach, published in a British magazine which is available in the US?

The problem is, like it or not, for a celeb (paraphrasing Wilde) the only thing worse than being photographed is not being photographed. In 99% of cases, I think the celeb gets what they asked for (if not what they bargained for) - its a Faustian deal ... yes, you can have the fame, riches, adulation (but check out the fine print).

It is also true that many celebs manage to lead very private lives ... don't want to be photographed at the big party? Here's a tip - don't go.

Others (including our Royal Family) make arrangements with the press - give us privacy on this occasion, we'll be co-operative on another.

Ultimately the problem arises because too many celebs want their cake and to eat it as well. A little planning and thought (the kind of things us normal folk have to do everyday to pay the bills) would make the problem go away.

I am sure there are genuine cases of indefensible intrusion of privacy, but there are already laws to cover that.

Cheers,

Colin

This whole celebrity personality cult thing is way out of hand. Paparazzi are just feeding a market that is largely driven by the publicists hired by the personalities themselves. If there is an issue of safety with aggressive photographers putting peoples lives and property at risk then action should be taken to correct the situation. If we are talking about celebrities being uncomfortable with the lack of privacy that they themselves fostered, I have little sympathy.

I don't think there is any doubt that people in the public eye are more vulnerable to all kinds of bad actions perpetrated by fans and others. However I don't think we need to grant special rights and privileges to individuals who leverage celebrity status to gain wealth and power. If you play the game you must be responsible for the possible consequences.

I like the idea, but the two grey areas need work. First, what limits the celebrity category? Can I, as an obscure professor, ask that outside of public lectures my private life and family be kept free from commercial exploitation, just because I can count a large number of papers published to demonstrate my "celebrity?" Can Mike Johnston, read by many but seen by few, except in a few still photos, decide to register his "celebrity?" Or in fact, can anyone register for this privilege? If anyone can register, then like copyright, it probably becomes inherent, with no need for registration after all.

Second, what defines "newsworthy." If a celeb's image is brave and upright, like Mel Gibson's, then public drunkenness and anti-semitic ravings are newsworthy, aren't they? But for mses Spears and Lohan, it seems such actions are now a part of their celebrity and no longer newsworthy, thus can no longer appear on the front pages of my favorite supermarket checkout line reading.

But here in America, we have a Supreme Court that can render such Solomonic judgements, so we should proceed apace...


scott

Hi Mike,

I do not understand how the world should become a better place if your proposal is applied. It is not a rhetoric question, I really cannot understand the point.

The least of my worries - or the smallest of the problems of the world - is celebrities getting photographed by paparazzi.

Cheers,
Bruno.

Mike,
Why are you wasting your time with this? The paparazi have as much to do with photography as house painters do with artists. The tools are the same, sort of...

I can't really see this as being a boon for anyone other than the lawyers arguing the cases.
Most people who are seen as celebrities have chosen a profession that makes those who are interested in celebrities want to know more about them. The Paparazzi and various TV and print tabloids are just catering to the public interest.
Also, the loss of privacy goes with the territory and they really shouldn't be surprised if their photo is snapped when they're out buying crack at 3 a.m.

Although it may sound like a nice idea on the surface, it would be impractical at a minimum and unconstitutional at most.

Trying to implement such a plan would be a bureaucratic nightmare and the legal challenges and claims of “celebmark” infringement would clog the court system within months. Shortly after that the celebrity and entertainment publishing industry would collapse.

I think a simpler solution would be better. Every person should have the right to ask someone (personally or through a representative) not to take photographs or video of them at any time or in any place. Failing to comply with the request would make the photographer subject to being charged with harassment. The hordes of photographers stalking celebrities would stop. If they’ve been asked not to photograph someone then they’re not going to continue hound the person, while not taking pictures.

Would it not be easier just to require commercial publishers (e.g. magazines) of photos of identifiable persons to be required to pay a fixed amount per-use to the "celeb" without delay or debate? The fixed amount would be modest, in principle, but could be increased if the "celeb" were able to demonstrate in court that their market value were greater. Also the amount would be substantially increased if the publisher failed to make timely payment without the "celeb" needing to take legal action. This would take some wind out of the sails of the paparazzi market, because it would essentially redistribute some of the value of the image to the "celeb", but that would be no bad thing. It would also not impinge on the non-commercial use of such images, e.g. instances of "celebs" being genuinely in the news (taking part in some public event, or getting into a brawl, for example) would continue to be news/editorial and not subject to this charge. Just my 2 cents ...

"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."

Ok, so this one is covered, but seems a bit vague. How on earth are you going to enforce this? Where do you draw the line? Either there is freedom of press or there isn't. This law simply gives more power to the elite.

And it would give some truth to those Jagger/Richards lyrics: "The lines around my eyes are protected by copyright law." (From The Rolling Stones' "Doncha Bother Me")

I have to say that seems like a huge amount of legal wrangling for a tiny minority of the population (even here in So Cal). I prefer the approach Madonna has taken. Wear a black track suit, sunglasses and a ball cap every time you go out. Then photos of you become worthless and the mosquitoes buzz off to find fresh blood. Then you just have us average peasants to deal with.

How would this change anything? Paparazzis are shooting for editorial publication. It's not a commercial use.

Admirable and even sensible ...but not sure if it would work in real life. Just too many different "circumstances" and I suspect this would just make the lawyers happy.

one problem might be that most celebrities who complain about the paparazzi actually want them there. free advertising! so, i'm not sure how many people would actually inforce it. they would probably take out the celebmark when they are very very famous and then quietly dismiss it when they NEED the photographers to stay "hot"

that said, anything to shut down the tabloids sounds good to me!

You're trying to define what the paparazzi do as "for commercial gain", but use of photos for commercial gain is already protected; the paps and the law see their work as news and editorial commentary. If O. J. Simpson had a celebmark, could he have sued the press for reporting on his being arrested for murder?

Whether or not it is unconstitutional is a matter for the courts, though it obviously seems to counter that bit about freedom of the press.

Making it illegal for the press to actually remunerate the photographer (or for the photographer to accept such) would be difficult, if not impossible to enforce.

Who, under Mike's theoretical proposal, would determine what is or is not newsworthy? The Courts? The Newspapers? The Ministry of Propaganda?

That the public DEMANDS such coverage and is willing to pay for it is indisputable. The ironical part is that most celebrities, before they become such, actually seek out media coverage. After they achieve 'celebrity-hood' and the vast riches that can accompany it, many become offended by the same coverage.

Come on, people, it's the price of fame! Any body making millions of dollars per film (e.g.)ought to recognize where that money come from - the same fans who go to the movies, watch TV, buy the CDs, etc., are the ones who buy the magazines and tabloids, watch ET , CNN, and other gossip channels that fuel the paparazzi.

If you don't like the heat, get the @%*# out of the kitchen.

John

You're forgetting that the celebrity actually has a need for the paparazzi in order to keep "stokin' the star-maker machine". That's what keeps them celebrities; if not being constantly 'celebrated', they just revert to being actors, or athletes, or ... nobodies. And they can't have that, now can they? What could possibly be worse than being famous, except not being famous?

While I'm not without sympathy for the celebs, it is the game they chose to get into, and on principle I don't like the idea of restricting what kinds of photography is acceptable for "news" however that is defined as long as the photography falls within commonly observed standards of respect for privacy.

Moreover, I'd be very uneasy about creating two classes of privacy protection. If it's so important to protect celebs from paparazzi induced harassment, then the law should apply to everyone all the time regardless of status.

I believe much of what you propose already exists in some jurisdictions (including parts of the US) under the concept of "publicity rights" (http://en.wikipedia.org/wiki/Personality_rights). However, it seems that these are generally interpretted to cover using someone's image in an ad or other promotion without their permission. It would be interesting to see whether a tabloid's use of Brittany's picture splashed across the front cover falls under commercial use, or would be exempt under free speech/freedom of the press.

Balderdash! Who does the celeb sue? Not the publisher, they've got 1st Amendment rights. If the pap, then how do you identify them, verify they're a pap not a tourist, serve them with legal process, collect a judgement, etc, etc.

The featured comment by David Bennett is the best I've read so far.

This guy should get the Irony Of The Year Award.

I can't get over the fuss being made about a B list actor. Who cares?

At least Mike's modest proposal did not involve eating infants.

Doesn't pass the First Amendment smell test. Sorry.

Firstly, overhere in Europe (.eu/.nl), it is already so that you, as a photographed person, have a 'portrait'-right; meaning you have the right to prevent a picture from being *published* (note: not the right to prevent the taking of the photograph!), or have a right for compensation if you have suffered a loss (ie. ones "good name", or ones "marketable appearance" if you're a famous celebrity). This right is trumped by the right for newsgathering, so if you're a celebrity getting photographed when in some bar fight you cannot prevent publication by saying 'hey thats my portrait stop that'.

However, and this is where the US and us (heh) differ, we also have a right for privacy, which makes the application of the right of newsgathering harder. Caroline of Monaco has litigated all the way to the European Human Rights Court to get this decision: http://www.iept.nl/files/2004/IEPT20040624_EHRM_Caroline_von_Hannover_v_Duitsland.pdf

So, photographs of celebrities working out or shopping or wherever that they have a reasonable expectation of privacy are, in theory, not allowed overhere.

See what I mean when I say it should be left to manners? Your suggestion brings up numerous complicated and intricate objections, by non-lawyers; imagine what lawyers could do with it. Imagine trying to litigate this, or even organize it.

Such things should be left to manners -- and sometimes, a punch in the nose, if a punch is warranted. And perhaps the punch in the nose should be prosecuted, and the puncher should be punished, somewhat, which still means that somebody got punched and learned a lesson.

Again, this is not a defense of lynching, rape, or witch-burning; it's just that sometimes a punch in the nose is better than a new law.

It's exactly these kinds of ambiguous situations that manners were invented to take care of, and in many countries, still do.

JC

Nigel,

So you noticed the lack of baby eating also? I thought I was the only one :)

"half of any financial damages awarded could go to the courts"

Guess what, the courts will be hearing only celebmark cases, haha, and the plaintiffs will win everytime.

I find it fascinating in itself that, given all Mike's posts concerning the real blood and guts of photography, that this entertaining (and I suspect ironic) conceit that has drawn so many comments. And how amazingly serious those comments are. A reflection on society's current obsessions, even if an oblique one? Even as we comment here, we reveal how important it seems to have become.

However, many of the comments assume that celeb culture is going to continue: how about we try to put a stop to the whole thing by turning into a joyful public farce (as opposed to the joyless public farce it is at the moment)? What we actually need is a counter-celebrity movement, like the counter-culture movement of my adolescence. We could stage happenings at red-carpet events, dressed in clown suits (or even naked) with placards saying things like "don't photograph them - it only encourages them" and point strobes directly into the paps' lenses. And "offer" the paps disposable cameras whilst relieving them of the Canonikons and donating them to deserving war-zone photojournalists and photography students. We could carpet the neighbourhoods where saintly tabloid editors live with pictures of them committing parking violations or screaming at their kids. Etc etc.

We could also extend the Madonna idea: all actual and would-be celebs are only allowed out in public wearing ill-fitting gorilla costumes. Then they would no longer have to suffer for their "art" - and more importantly, neither would the rest of us. At the same time, paps would be allowed to operate, but only if dressed in unventilated polystyrene foam banana suits. And Darryn Lyons could get a proper grown-up job.

And we would add to the gaiety of nations as well as their moral well-being.

Norris remarked: "use of photos for commercial gain is already protected; the paps and the law see their work as news and editorial commentary." True, but they (the paps and the law) are wrong. Celebrity feeding frenzy is not real news. Also "If O. J. Simpson had a celebmark, could he have sued the press for reporting on his being arrested for murder?" -- no, because murders are newsworthy. More so for celebs, but the news issue is fundamentally the murder. Proof is that murders by and of non-celebs also get lots of coverage. Not always so much, but it's a difference of degree, not of kind. To try to sum it up, IMHO, I'd say that "celebs" do not deserve to be harrassed so long as they behave decently. If they get in trouble with the law, drink and drive, go out in public more or less naked, get into brawls etc and worse, then they are fair game.

I wonder how many are aware of the origin of your title "A Modest Proposal"? :-)

Probably most U.K. readers know it. It is, of course, the title of one of Jonathan Swift's best-known tracts, proposing that to solve the problem of Irish poverty they could sell their children to be eaten by the rich. More generically, a "modest proposal" is one that would cause more harm than it solves--but that does call attention to the problem!

Also recommended, the Satires of Horace.

Mike J.

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