A recent article in Wired by Julia Greenberg titled New Ruling is a Stark Reminder that Your Image Isn't Yours concerns a lawsuit over the rights of an actress to her own image. In July of 2011 the plaintiff, Cindy Lee Garcia, was cast in a film that she believed was an action-adventure titled Dessert Warriors. Footage of her performance was later cut into the film Innocence of Muslims, a deeply controversial 14-minute "trailer" that had anti-Islamic content added in after production was complete. These changes were made without the knowledge of the actors in the film.
The content of the film lead to protests and violence around the world. Of particular import to Garcia was the fact that her character, who appears only briefly, had the line "Is your Mohammed a child molester?" dubbed over the line she originally spoke. Garcia received death threats due to her appearance in the film.
Garcia suit was unusual in that she sued Google and YouTube in Los Angeles Superior Court, and later in Federal court, to have the video taken down, on the claim that the existence of the film on "YouTube violated her copyright interest in her performance." While lower courts rejected her claims, a three-judge panel on the 9th Circuit Court of Appeals ruled in her favor, and ordered the film taken down while simultaneously leaving the final say to the rest of the 9th Circuit, which just released its ruling against her in an en banc decision. This final decision of the court allows Innocence of Muslims to be uploaded again to video sharing sites.
The court's decision in this case is pretty clear: Garcia was a paid actress who was compensated for her performance and essentially sold the rights to her image to the filmmakers. If the court had sided with Garcia, the implications would have been staggering. Circuit Judge M. Margaret McKeown wrote in the decision that if Garcia succeeded in her claims, it would "enable any contributor from a costume designer down to an extra or best boy to claim copyright."
However, as Greenberg notes in her article, the implications of the 9th Circuit's final decision are just as staggering, because it reaffirms the rights of content creators, which is a role with a rapidly-expanding definition.
In our ever-digitizing world, where media tools are in the hands of anyone with a smartphone, content creation is not just professional writing, filmmaking, or photography anymore. New camera models have built in wi-fi to upload images to social networks like facebook, which may then automatically tag a face in them that would prefer not to be seen. Private photos can go viral on social networks. On-the-fly videos are recorded on a phone and then instantly uploaded onto YouTube.
With the advent of live-streaming apps like Meerkat and Periscope, even the brief intermediary period between recording a video and hitting the upload button can be eliminated. We may soon live in a world where people are participating in content unwillingly, and have no legal recourse about it.
Courts have ruled that when you are in public, you do not have a reasonable expectation of privacy. And, Julia Greenberg notes in Wired, "nearly anyone, filmed nearly anywhere, cannot lay claim to their image, at least under copyright law."
But do you have the right not to be identified by strangers when you are in public? Is there a legal middle-ground here? Should there be? Only the future will tell, but the fact remains: Technology may be advancing faster than the law can keep up.