How to Write a Life: Some Thoughts on Fixation and the Copyright/Privacy Divide

TABLE OF CONTENTS INTRODUCTION I. THE COMPETING INTERESTS: COPYRIGHT LAW AND PRIVACY LAW A. The Creator as Author: Copyright Law's Incentives B. The Subject as Author: Privacy and Related Torts II. FIXATION AND ITS EFFECTS A. History B. Justifications III. FIXATION AT THE BOUNDARY OF AUTHOR AND SUBJECT CONCLUSION INTRODUCTION In the fall of 2001, a New York gallery mounted "Heads," a show of street photography by photographer Philip-Lorca diCorcia. DiCorcia, who had worked in this genre for many years, had set up his camera in Times Square and taken photographs of strangers, without their knowledge, as they passed by, (1) then cropped and framed the photographs to create portraits of each subject. Four years later, Erno Nussenzweig discovered that his photograph was among those in the exhibition. His image was included in the show's catalogue and was available for sale in ten limited edition prints. Nussenzweig, an Orthodox Jew who believed that the photograph offended his religious beliefs, brought suit under New York's right of publicity law, (2) alleging that the use of his image for commercial purposes was unauthorized and thus unlawful. (3) Although Nussenzweig's case ultimately failed on statute of limitations grounds, the trial court offered an alternative holding (4): that diCorcia's transformation of Nussenzweig's image--unbeknownst to him--into "art" rendered the photograph constitutionally protected and thus outside the scope of New York privacy law. (5) DiCorcia's act of fixing Nussenzweig's face in a photograph--and the subsequent categorization of that act as "art"--transformed Nussenzweig's image from personal to property, giving control of it to the artist rather than to the subject. (6) Six years later, Alison Chang, a teenager living in Texas, was surprised to learn that a photograph of her taken by a friend and posted to the photo-sharing site Flickr was used on a billboard in Australia as part of an advertising campaign for Virgin Mobile. (7) The print campaign featured numerous photos taken from Flickr on which Virgin had superimposed captions; the one on Chang's photo read "Dump Your Pen Friend." Chang, claiming that the campaign transformed her from a "normal high school student to the 'dump your pen friend girl,"' filed suit against Virgin Mobile in state court in Texas, alleging, among other things, that Virgin's activities constituted an invasion of privacy. (8) But whether Chang could have successfully asserted such a claim remains uncertain: Chang's friend had posted the photograph to Flickr under a Creative Commons Attribution License, which allows others to copy and use the photograph provided that attribution is given. (9) Thus, had the case gone forward, Virgin Mobile might have argued that it had complied with the terms of the license and so satisfied all of its legal obligations toward the owner of the rights in the photograph. (10) The experiences of Nussenzweig and Chang are commonplace. Many individuals have been surprised or troubled to find themselves the subject of biographies, plays, photographs, and Internet postings in which they did not actively participate, transformed from fairly anonymous individuals into widely known artistic subjects. (11) Although these experiences are not new, the development of recording and photographic technology and the ability to distribute such recordings over the Internet to a worldwide audience have redrawn the boundary between public and private. Events that formerly would have receded into the darkness of the past are now captured on mobile phones and uploaded to YouTube. Search engines and web archives make it ever harder to distance oneself from these once forgettable and now cemented episodes of life. Commentators have chronicled the misfortunes of individuals who believed their actions were viewed by only a few in the direct vicinity but who became unwilling Internet sensations virtually overnight. …