Is Printing Call Girl Photos Fair Use?

from the transformative-use dept

Mon, Mar 24th 2008 10:44am — Timothy Lee

Last week, Mike noted the controversy over whether printing racy photos of Ashley Alexandra Dupre, the prostitute at the center of the Eliot Spitzer scandal, was fair use. He thought it was, and William Patry has an interesting post exploring one precedent that might support a fair use finding. He describes a 2000 case in which a Puerto Rican model's nude photographs were the subject of a copyright dispute. The model had been crowned Miss Puerto Rico Universe 1997, and some people thought that she had set a bad example by posing nude. Newspapers began printing the photos as part of their coverage of the dispute, and the holder of the copyright in that case sued the newspaper for copyright infringement. The US Court of Appeals for the First Circuit ruled in 2000 that the use of the photos were fair use because the photos were integral to the scandal the newspaper was reporting on, and that the use was "transformative" because the news-reporting function the newspaper was making of the photos was significantly different than the portfolio-building purposes for which the photos were originally taken. Patry suggests that similar reasoning might apply in this case. However, one of Patry's commenters points out an important consideration on the other side: in the Puerto Rico case, the photographs were at the center of the scandal. Pictures of Ms. Dupre are not central to the Eliot Spitzer scandal in a way that's remotely analogous. So it might be harder to make a fair use argument in this case. The key question, I think, is whether the judge felt that the photos were integral to the reporting of the story, or whether the story was just an excuse to increase circulation by printing some racy photos. That seems like a close call to me.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: ashley alexandra dupre, copyright, eliot spitzer, fair use, news reporting

15 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

bored, 24 Mar 2008 @ 11:27am

reply
Who really cares about that little tramp? I can think of way more beautiful women to have pictures of. An Ms. Dupre is just a little spoiled girl (BRAT), not a woman!
[ link to this | view in thread ]
ha ha, 24 Mar 2008 @ 11:36am

Re: reply
bored a.k.a Eliot Spitzer
[ link to this | view in thread ]
Alex, 24 Mar 2008 @ 12:20pm

Err... the photos of Ashley Alexandra Dupre are not integral to the news story (as they were in the miss puerto rico example). Copyright infringement, plain and simple.
[ link to this | view in thread ]
Anonymous Coward, 24 Mar 2008 @ 1:03pm

If they are out there publicly on a Myspace page and she doesn't even have the brains to mark them private or her profile private so anyone can see and download them how can you say the media can't use them?
[ link to this | view in thread ]
Noah Callaway, 24 Mar 2008 @ 1:17pm

Re: reply
Unfortunately for your argument, copyright law does not (to my knowledge) take into account the upbringing of the copyright holder. While you may not personally care for Ms. Dupre, the ruling of this case could have some effect on the interpretation of copyright law that is applicable to all of us (brats and non-brats included).

Frankly, I'm interested to see where this goes. I think the newspapers would have an easy time arguing fair use if each only published one or two photos as a supplement to the story. On several news sites, however, I saw they had a photo-gallery of Ms. Dupre. To me, this did not seem to be an important part of the story. I'm much more hesitant to call the photo-galleries of ripped images 'Fair Use'.
[ link to this | view in thread ]
Joe Smith, 24 Mar 2008 @ 1:25pm

Paying for it
So she wants to be paid for what others might give away free - that's sort of the whole point of the original story isn't it?

More power to her. If the newspapers want to make money peddling her flesh to all the closet voyeurs out there then she should get a cut.
[ link to this | view in thread ]
Steve R. (profile), 24 Mar 2008 @ 1:36pm

Into the Public Domain
I propose a more radical view for when the copyright holder "losses" the privilege of copyright. If you throw content out in a public forum for "free" public consumption and others begin to use it (as an incidental use) I don't think that should be considered infringement. Especially if the content is being used as a marketing tool (soliciting business).

I will agree, that one would not have the right to put her image on a poster and to sell the poster without her consent.

Of course I am NOT a lawyer and this approach may not comply with how the law is interpreted today. Its time for the law to recognize that if content is being tossed out by the content creator for easy public consumption that this would constitute a "gift" to the public.
[ link to this | view in thread ]
Alex, 24 Mar 2008 @ 2:39pm

Re:
Because she has the rights to publish the pictures, and the media doesn't. It's quite simple!
[ link to this | view in thread ]
Lonny Paul (profile), 24 Mar 2008 @ 2:48pm

Re: reply
Not only that - $1000 an hour?

Perhaps Mr. "Spit"zer has some interesting needs.... or has to pay for someone to be accepting of him....

For a grand an hour - they should lube his CAR too!
[ link to this | view in thread ]
Sal, 24 Mar 2008 @ 2:48pm

Close call?
I don't think so. If they were just showing her face or one or two pictures of her then I would agree, but it's obvious they are using a "sex sells" approach to the whole issue. Regardless of what SHE did, she has not at this time been charged with a crime, the only reason she is being put out there is because she was the last girl hired by Spitzer. I admit I am not familiar with the law regarding how they can be used because she had posted them publicly on her MySpace page BUT they are obviously using them for their salacious value not any inherent news value.
[ link to this | view in thread ]
Joe Smith, 24 Mar 2008 @ 2:57pm

Re: Close call?
"it's obvious they are using a "sex sells" approach"

No kidding. I like the picture of her in the bikini on the boat - great rack.

As she explores commercial opportunities, maybe one of the condom manufacturers would hire her as a spokesmodel: "If I can make the Governor wear a [insert condom product name here] you can make your dirt bag boyfriend wear one. Just say, do you want the sex or not ..."
[ link to this | view in thread ]
ehrichweiss, 24 Mar 2008 @ 4:18pm

Re:
Plain and simple? Care to cite some more evidence before jumping to a conclusion since the one observation you present does not guarantee that it is infringement.

Though, if anyone brings a lawsuit, the pics *will* be at the center of the case and then everyone could print them as they wished so long as they were covering the case. This definitely makes the outcome either win-win or lose-lose.
[ link to this | view in thread ]
Bri (profile), 26 Mar 2008 @ 7:31am

Infringement... yes
I think the key here is profit. If a news organization actually had some real duty to report the news, as opposed to being a profit driven machine, then I might argue for fair use here. However, the usage in this case can be measured as a tangible profit for the news agency and as such, there should be damages awarded for Ms. Dupre.
[ link to this | view in thread ]
isaac addoquaye, 7 Apr 2008 @ 8:51am

heloo
send me more pictures with one girl
[ link to this | view in thread ]
shhhhhhhhhhhh, 16 Apr 2008 @ 7:21am

I would like the sexy photos with XXX
[ link to this | view in thread ]