Selfies have become a global phenomenon, but what type of protection does one have to prevent the spread of photos that have been hacked?
We have all heard the story that broke last month about the hundreds of intimate photographs of numerous celebrities, including Kate Upton and Jennifer Lawrence. Although questions are still being raised about the security of cloud storage, copyright law may provide the strongest mechanism to stop the unauthorized dissemination of photos.
A selfie is a self-portrait photograph typically taken using a camera phone or hand-held digital camera. These selfies are typically shared on social networking services such as Facebook, Instagram, and Twitter. As soon as the selfie is taken, it enjoys copyright protection. Copyright protects works of expression fixed in a tangible medium – which is a photograph. There are no copyright formalities needed (i.e. you do not need to display the © emblem) and you do not need to register the photo with the U.S. Copyright Office.
Under Copyright Law, the owner of the selfie would have the right to control and prohibit the reproduction or distribution of the selfie. Anyone making a copy has infringed the copyright.
Although there is a fair use defense to copyright infringement for criticism, comment, news reporting, teaching, scholarship, and research, the selfie owner will have a strong claim for copyright infringement given that the unauthorized use is not likely to fall within the fair use standard. Courts will consider four factors in determining whether or not a particular use is fair: (i) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and sustainability of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for, or value of, the copyrighted work.
Further, although many states, such as New York, have right of publicity laws, they require that the image be used for commercial and business purposes, which is harder to demonstrate when the infringer utilizes the image for artistic purposes.
Accordingly, the strongest potential lies in copyright law. Selfie owners would be wise to avail themselves of the automatic protection provided to them. If the owner obtains an injunction, the selfie can be immediately removed from the public domain, which is likely the primary goal in these circumstances.