Ashley Alexandra Dupre, made suddenly famous as the call girl most prominently linked to the Eliot Spitzer scandal, is angry that her name and likeness have been thrust into the spotlight.
The lawyer for the call girl linked to the downfall of Gov. Eliot Spitzer lashed out at the media on Friday for thrusting the 22-year-old woman into the “public glare” without her consent and publishing revealing photos. Since her identity was disclosed, newspapers and Web sites have splashed photos of Ashley Alexandra Dupre in suggestive poses on front and inside pages. Dupre was known as “Kristen” in court documents accusing Spitzer of paying thousands for prostitutes’ services.
Her attorney, Don D. Buchwald, said she did not consent to the use of her photos in this manner, and the usage may be a violation of federal copyright laws. He said the photos have appeared on commercial Web sites without her consent. Buchwald stopped short of saying Dupre would sue media outlets, but he contended that she is not a public figure and said he would take “all steps that we deem necessary or appropriate to protect Ms. Dupre from any unwarranted exploitation of her name, picture, voice or likeness for purposes of profit.”
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Buchwald said the montage of Dupre’s suggestive photos has nothing to do with the Spitzer story. “While the circumstances surrounding Governor Spitzer’s resignation are newsworthy, some publications, in violation of journalistic norms, have used the occasion of Gov. Spitzer’s political misfortunes as an excuse to exploit Ms. Dupre’s persona for commercial purposes,” he said.
Photo District News explores the legal issues:
Three attorneys who specialize in copyright law say media organizations are sailing in dangerous waters if they publish a personal snapshot without permission. “Whoever took that picture owns that picture,” says New York attorney Nancy Wolff. “It’s either an infringement or they [the news outlets] have to make a fair use argument.”
Wolff says the news organizations probably decided the risk of a lawsuit was low. They also probably considered competitive pressure as other sources published the same photos. “It’s a fast business decision,” Wolff says.
The fair use argument would be a thin one, attorneys say. Fair use cases consider factors such as whether the image has been transformed and whether publishing the image displaces the market for the image, according to New York attorney Joel Hecker. In this case, Hecker says, the image was not transformed and it diminishes the market for the image rights. “If these are the only images available, they might go for thousands and thousands of dollars on licensing,” Hecker says. “I think the probability would be that this would not fall under fair use.” Hecker says he would advise a photographer in this situation to contact news agencies and negotiate a fee, and if that fails, to sue.
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Associated Press director of photography Santiago Lyon says AP consulted with its legal department before deciding to use the photos. “Given the news value of the photographs, we decided that these were images that the public needed to see,” Lyon says.
MySpace’s Terms & Conditions page states that “MySpace does not claim any ownership rights” over the photos users post on the site. It says MySpace has the right to display user content within MySpace, but “This limited license does not grant MySpace the right to sell or otherwise distribute your Content outside of the MySpace Services.” The photos remained on Youmans’s MySpace profile Thursday morning, but had been taken down by Thursday afternoon.
My limited understanding of copyright law as it pertains to digital images leads me to believe that Dupree has a valid claim. The publishing of images on a public website does not put them into the public domain.
That strikes me as incredibly silly, though, and as a relic of the pre-Internet world. Like it or not, Dupree is a public figure now and the images are indeed newsworthy. People are naturally curious about celebrity sex scandals and, when a high profile figure risks everything to engage in illegal sexual activity, questions arise that can only be answered with photographs.
It seems to me that when a copyright holder puts images in a public forum, that should render them public domain for the purposes of news reporting and commentary. It shouldn’t confer the right to sell said images directly but their use to illustrate a story should be “fair use” under the law.
This is interesting, if not surprising:
But media interest in Dupre still swirled. Hustler Publisher Larry Flynt told the AP Friday that he had e-mailed Dupre, offering her $1 million to pose nude for his magazine. He said he hadn’t heard back. “It will be something that will very tastefully done,” Flynt said of the proposed photo spread, but he added that Dupre would have to appear completely naked and not just topless. “Hustler readers don’t like to compromise,” he said. “They want the whole enchilada.”
That’s a euphemism with which I’m unfamiliar but I’m sure he’s right. Presumably, capitalizing on her fame by posing nude for Hustler would obviate her claim of not being a public figure.
