Are People Passing Around Images Of Lenny Kravitz's Wardrobe Malfunction Violating Revenge Porn Laws?

from the well... dept

As you may have heard... a couple weeks ago during an onstage performance, rocker Lenny Kravitz had something of a wardrobe malfunction (potentially NSFW link), in which his pants split open and he exposed himself to the audience. This has resulted in lots of discussion about a variety of topics, including from the person who is taking credit for the piercing we now all know Kravitz has.

And while Kravitz initially appeared to laugh it off, soon after, his lawyers started going after anyone sharing the images or videos, tossing out just about any ridiculous legal argument they could think of including "copyright, human rights, right-of-publicity and performer's rights." In case you're wondering, basically none of those apply, though the specifics may matter in that there may be some very, very marginal cases where some of the images may go against some right. But mostly, the lawyers are spewing nonsense. The "human rights" claim is laughable. The copyright claim is so bizarre no one's even sure what copyright he's claiming (if you're wondering, the music he was playing at the time was a cover song, so he doesn't hold the copyright on that either), but it's certainly not in the photos themselves, where the copyright belongs to the photo taker. Rights-of-publicity depend state to state, but generally are focused on things like the use of a famous person's likeness to endorse a product. That's not happening here. As for "Performer's Rights" those are, generally speaking, about rights to be reimbursed for the use of a performance -- and almost never include a right to exclude usage. A recent paper on performers' rights in Europe (where the malfunction happened...) makes it clear:

Equitable remuneration rights and the remuneration granted under exceptions and limitations to certain exclusive rights do not give rightholders the possibility to authorise or to prohibit the exploitation of their work but do at least ensure them an income.

But here's the thing: I'm somewhat surprised that Kravitz's lawyers aren't trying to argue that this is "revenge porn" and breaking the law that way? Revenge porn, or nonconsensual pornography, laws are popping up all over the US, and a federal revenge porn bill has been rumored for many, many, many, many months -- with the promise always being that it's coming "next month." In fact, just a few days ago we got the latest such promise. The latest rumors are that the bill will make it a criminal act to share a "non-consensual" image of someone's naked bits.

Which raises the question: could anyone who shared or linked to the images of videos of Lenny Kravitz's junk... possibly be a criminal?

Right now, it would depend on the state law in question. Arizona's law, which has thankfully been put on hold after the court's realized it was unconstitutional, would almost certainly make anyone in Arizona who shared the image guilty of a criminal act. It says that it's "unlawfully to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure." And while there's an exception for "images involving voluntary exposure in a public or commercial setting," from the statements by Kravitz's lawyer, I think they'd argue this was hardly "voluntary." Arizona's law also makes the crime more serious "if the depicted person is recognizable," which, you know, he is. That would make it a "class 4 felony" subjecting someone to between six months and two years in prison for sharing the photo. Yikes. Thankfully, that law is on hold.

How about California's revenge porn law, which leaves the issue not entirely clear. Under that law, "Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person," may be violating the law, but there is a caveat that might create an out. It only applies only in situations where:

"the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress."

Do the people agree that it should remain private? Probably not, but perhaps that's an issue that Kravitz's lawyers could fight over in court. But the last line is more troubling. So long as Kravitz's lawyer argue that the distribution of the image caused "emotional distress" perhaps there's a claim here. And that seems pretty problematic. There are a few other exemptions under the law, including if "the distribution is made in the course of reporting an unlawful activity," but it's not clear that applies here either. At the very least, it seems like this could get tied up in court while people argue about it.

As for the federal law that Rep. Jackie Speier is pushing, we still don't know the specific details, but most reports say that she's been working closely with Professor Mary Anne Franks on it (note: Franks dislikes Techdirt and will all too regularly lob ad hominem attacks our way). Franks has written some draft legislation that she would like to see enacted. Under her draft bill, thankfully, Kravitz and his lawyers would have a bit more trouble putting random tweeters in jail, but it still might get dicey. It does criminalize "transferring, publishing, distributing or reproducing" an image or video that includes "intimate parts" which "means the naked genitals" -- but it has some vague exceptions:

(1) Images involving voluntary exposure in public or commercial settings; or

(2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

Again, Kravitz's lawyers would clearly argue that it's not a voluntary exposure. Then that would leave open the discussion of whether or not people reposting the image did so "in the public interest." It doesn't clearly fall into any of the listed "public interest" areas, but the draft law clearly states that things are not "limited" to those areas.

And that's where it begins to get pretty damn dicey on First Amendment grounds. You end up in a position where, say, someone who retweeted such an image is not only facing potential criminal charges, but then is in the position of having the burden placed on them to argue that retweeting an amusing image of Lenny Kravitz's junk is "in the public interest." And, that's the kind of thing the First Amendment is supposed to prevent. No one should be in court needing to argue that their expression is "in the public interest." Because that's a massive can of worms.

Now, contrary to what Franks has falsely said about myself and others, I don't think that "violations of sexual privacy" are okay. But I do worry that in the rush to criminalize activity that we all agree is ridiculous and problematic, that we end up overcriminalizing things, including issues related to free expression. I'm quite happy to see that most revenge porn sites in the US are now out of business, following various legal efforts (almost none of which relied on revenge porn laws...). I'm quite happy to see folks like Adam Steinbaugh expose and ridicule those behind revenge porn sites, shining a spotlight on people who can only be described as scum of the earth for thinking such things are okay.

However, thinking that non-consensual porn is immensely problematic does not mean that we should just toss aside the First Amendment concerns with the bills that are proposed to criminalize the practice. In this case, I'm using the example of Lenny Kravitz and his wardrobe malfunction to hopefully highlight that this is not such a simple problem, and -- contrary to the argument of Franks and others -- could have some very real world consequences on issues of the First Amendment and free expression.

Filed Under: first amendment, laws, lenny kravitz, nonconsensual porn, revenge porn