practiceSocial MediaRight of PublicityMotion Picture &
Television ProductionCopyrightLitigationIFTA ArbitrationDefamationLoan Out Company
Rebecca Herron, a student in Jon Pfeiffer's Fall 2012 Media Law class at Pepperdine University, wrote the following essay in response to the question: "You see a famous actress sitting on a barstool in an airport bar and you take a picture of her without her knowledge. Later, when you look at the picture, you notice that she was not wearing underwear. Can you sell the picture?"
I have spent the past four years flying back and forth from LA to Texas and have yet to spot a celebrity, so I don't think that photographing him or her in a moment whey they've decided to go out in public and leave their underwear at home will become a problem for me anytime soon. However is on the occasion I find myself in this awkward yet somewhat opportunistic, given the public's obsession with the tabloids, moment, the first thought to cross my mind wouldn't be to snap a photo and sell it.
As I hardly consider myself one who is easily star struck, there are many times while watching entertainment news and I think to myself that a particular celebrity's public stunt is due to them lacing a decent PR agent or simply their own disregard for their reputation. That being said if I happened to catch a celebrity on an underwear free day sitting at an airport bar, while my moral conscience would tell me it would be best to refrain from selling the photo, legally I don't think I would be banned from doing so.
So long as something occurs within the public view where there is no reasonable expectation of privacy, photographing the occurrence is not a problem. Furthermore there doesn't seem to be a problem with selling the photos to any publication as it took place out in the open. If a celebrity, who is aware that their every move is closely followed by the public, chooses to sit in the open with no regard to what is showing then they are the ones at fault and any photograph taken can be sold.
Personally I would refrain from selling the photo as I feel too much emphasis is placed on celebrities to begin with, while they may be famous they are still people with lives of their own. Nevertheless someone who is taking a photo with a normal lens out in the open can sell the photo if they choose without legal ramifications because there is almost no privacy in the public sector.
Under these circumstances the question seems to focus on the individual's take on the matter rather than the possibility of selling the photo. It appears that the answer is clearly yes, the photograph can be sold, whether or not it should be sold is the choice of the photographer or "fan."
Rebecca Herron is a senior at Pepperdine University majoring in Telecomm Television Production / Multimedia Design.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. The class covers First Amendment issues as well as copyright, defamation and privacy.
Contact Jon and his team today.