Over the past several years, once-concrete visual images have become remarkably elastic. Consumers and audiences now routinely confront altered images that no longer reasonably approximate what actually transpired in front of the camera. Moreover, the subjects and creators of photographs, motion pictures and television shows have seen themselves, and the works they create, distorted by computer technology in flattering and unflattering ways.
Current methods of altering visual images present enormous legal and ethical challenges. As the following examples demonstrate, artists, advertisers, entertainers, the news media and politicians have eagerly taken advantage of new computer technologies to digitally alter visual images and create entertaining, exciting and powerful new means of expression. However, these same examples also show that this technology can mislead the public, defame the persons depicted, deprive the original artists of control over (and compensation for) subsequent changes to their work, and destroy the delicate credibility and objectivity of all visual images: . In the 1990 Massachusetts gubernatorial election, one candidate's campaign commercials used photographs depicting his opponent addressing a group of elderly voters that had been manipulated and distorted to make it appear that the opponent was harassing those voters. During the 1996 elections, a U.S. senator aired a commercial that realistically incorporated his opponent's image into photos of unpopular politicians to make it appear that the opponent was a political "insider." [FN1] . Time magazine received widespread criticism for exploiting a cover photograph of O.J. Simpson's police mug shot that Time intentionally altered to make Simpson look more menacing and "blacker." [FN2] Ford Motor Co. used digital technology to eliminate black and Indian workers from an advertising brochure by lightening their skin tones, changing their hairstyles and removing clothing that appeared too "ethnic." [FN3] . Recent television commercials incorporated vintage movie scenes of Humphrey Bogart, Gene Kelly and Louis Armstrong that had been digitally altered to show these celebrities drinking cans of Diet Coke. Not to be outdone, Pepsi countered with television ads in which Pepsi spokesman Shaquille O'Neal "co-starred" with Lucille Ball and Jackie Gleason in classic episodes of I Love Lucy and The Honeymooners. . The real stars of Jurassic Park and Twister were computer-animated dinosaurs and tornadoes combined seamlessly with conventional live-action motion picture images. In Terminator 2, computers manipulated the image of actor Robert Patrick by reshaping and manipulating his image like a lump of humanoid clay into various forms. And building upon 1983's pioneering Zelig, in which Woody Allen co-starred with Babe Ruth and Charlie Chaplin, Forrest Gump depicted Tom Hanks co-starring with Presidents Kennedy and Johnson. [FN4] . Television stations have aired colorized versions of such classic films as Frank Capra's It's a Wonderful Life, even though their original directors and cinematographers had no role in altering those works and vehemently opposed the modifications. [FN5]
The widespread use of this technology raises a host of novel issues under copyright, unfair competition, defamation and right of publicity laws, and creates new conflicts between these various legal doctrines. For example, directors, cinematographers, photographers, models, actors and others involved in the creative process of making visual images often do not own the copyrights in the works that they help create. What recourse do these artists have if their creative contributions are changed or economically exploited through the subsequent creation of altered versions? As George Lucas stated: The agonies filmmakers have suffered as their work is chopped, tinted and compressed are nothing compared to what technology has in store. Unless the United States achieves uniformity with the rest of the world in the protection of our motion picture creations, we may live to see them recast with stars we never directed, uttering dialogue we never wrote, all in support of goals and masters we never imagined we would serve. [FN6]
The novel and interrelated legal issues presented by this new technology are not limited to an artist's ability to control modifications of his or her work, and the media has not restricted itself to applying digital manipulation to the field of entertainment. As the examples of O.J. Simpson and Ford Motors demonstrate, the mainstream media has become increasingly bold in altering visual images to increase the dramatic and aesthetic appeal of news images and consumer advertising. By 1989, an estimated 10% of all color photographs published in the United States were digitally retouched or altered. [FN7] As one commentator on photojournalism noted: [T]here is a revolution in image-making underway that is beginning to remove the accepted certainties of the photograph and to make the world newly malleable.... The computer is increasingly being used to manipulate the elements of photographs and quickly and seamlessly rearrange them. People or things can be added or deleted, colors modified, and images extended. The computer's retouching capabilities are more efficient, subtle, reliable and undetectable than ever before. [FN8]
These new technologies require an examination of whether the current state of the law sufficiently protects the persons depicted in altered images, and whether the law must develop new doctrines to ensure that the public receives accurate information from the media.
In analyzing these issues, one must also consider the competing interests of those who utilize digital technologies. In many cases, digital alteration can itself constitute a valid artistic statement that should be encouraged. An overly restrictive interpretation of the law may constrain the ability of artists to use new media technologies to make a particular point or to better illustrate an issue of public importance. Similarly, the laws should not be construed to unnecessarily inhibit advertisers or artists from using digital technology to convey creative and powerful commercial messages or entertaining content.
Industry customs, as well as a few lawsuits, have attempted to bring order to the market for altered images. In one lawsuit, a New York newspaper agreed to pay $20,000 to a photographer after the newspaper, without the photographer's permission, digitally manipulated a photograph as part of a front-page computer generated montage. [FN9] The National Press Photographers Association attempted to create standards within the photojournalism profession to limit the use of altered photographs and to require the labeling of altered visual images. [FN10] However, this attempt was unsuccessful, leaving it to individual news agencies and publications to choose whether or not to institute guide-lines. [FN11] Lacking formal industry standards to impose limits upon the alteration of visual images, existing legal doctrines must be applied to protect the various interests affected by this new technology.
A variety of legal theories, each with unique quirks, must be deftly navigated and combined in order to effectively balance these various competing interests. This article describes how to achieve such a balance by applying existing law, without the need for any new statutory amendments or novel legal doctrines. Part I of this article discusses the unique role and credibility that visual images have historically enjoyed in society, and describes some of the modern technological tools that permit the undetectable alteration of these images. Part II discusses the formidable power of copyright law to prevent digital alterations of copyrighted visual images, although only the owners of the copyrights in those images may exercise this power. Part III-A discusses federal and state artists' rights statutes, and notes that these statutes provide incomplete and almost entirely untested protection to most visual images. However, because many foreign nations have moral rights laws far more robust than U.S. law, those who distribute images in foreign countries, or who modify images created in foreign countries, must carefully consider foreign moral rights laws. Part III-B discusses the Lanham Act and state unfair competition laws, which may provide those involved in the process of creating visual images with a powerful weapon to prevent others from marketing distorted versions of their works. Part IV discusses right of publicity laws, which recognize an individual's property right in the use of their name or image for commercial purposes. These right of publicity laws can provide the subjects of visual images with effective tools to prevent the distribution of altered versions of their image. Part V discusses how defamation laws prevent the media from presenting distorted visual images that convey false factual information and that harm the subjects of those images.
This article concludes that effective protection can be achieved within the framework of existing law. Copyright, unfair competition, right of publicity and defamation law have all anticipated many of the conceptual issues raised by the digital alteration of visual images. These legal doctrines -- if applied with consideration of our unique reliance upon visual images to convey accurate information and the special problems raised by modern methods of altering those images -- can be interwoven with each other and with existing principles of contract law to effectively protect and balance the competing needs of copyright owners, visual artists, the media, the persons depicted in visual images, and the public.
I. VISUAL IMAGES AND THE OBJECTIVE EXPRESSION OF REALITY
Visual images have remarkable weight and credibility, which other forms of media simply do not have. [FN12] Modern man has been conditioned to trust visual images, and we rely heavily upon visual media for information about our world. [FN13] This trust originates in the technological fact that photographs, videotapes and motion pictures are, in some ways, "fossilized light," created by a chemical and mechanical process that captures a direct physical imprint of reality. [FN14] As a result, the existence of a photograph or other visual image generally passes for incontrovertible proof that a given thing has happened. [FN15] When we look at visual images we assume, unless we have some clear indication to the contrary, that they have not been reworked, and that they faithfully depict reality. [FN16]
Several emerging methods of altering visual images threaten this trust. Details in an existing image, such as the expression on a person's face, or the colors of the sky in the background, can now be changed quickly and cheaply, without anyone knowing that the image has been altered. Image fragments from different sources can be combined seamlessly into a single composite image. Undesired portions of an image can be deleted or replaced with other images. Conversely, desired portions of an image can be "cloned" to expand the original image. Realistic images can even be created entirely from scratch on a computer. In addition, each of these different techniques can be combined in a single image that "may be part scanned photograph, part computer- synthesized shaded perspective, and part electronic 'painting' -- all smoothly melded into an apparently coherent whole." [FN17]
These new technologies conflict with what we have been conditioned to believe about visual images. Unlike musical, theatrical or literary works, we do not expect much interpretation in various versions of the same visual image. In fact, it is the constancy of the visual image that we rely upon. [FN18] Because we assume that visual images accurately depict a moment of reality, altered visual images present different legal and artistic issues than any previously known method of creative expression. A digitally altered image no longer depicts reality, thus contradicting our expectations and conditioning. As realistically-altered images proliferate and become more common, "the credibility of all reproduced images will be diminished by a climate of reduced expectations. In short, photographs will not seem as real as they once did." [FN19] Photography "will come more easily to be seen, like painting, as synthetic, the outcome of an act from the artist's imagination." [FN20]
These distortions threaten the original vision and expression of the artists who initially captured the image. The existence of numerous different unauthorized versions of a work devalues the integrity of the original artist -- whether the artist is a photographer, motion picture director, actor or other person depicted in the image. As the Coke and Pepsi examples demonstrate, filmmakers have seen their works repopulated with actors who were not even born when the original image was created. In the past, photographers retained economic and creative control over their images by keeping the negatives, thereby preventing others from making unauthorized prints of that image. However, once images are in digital form, there is no degradation between the "original" and the "copy." [FN21] As a leading commentator noted: In general, computer files are open to modification at any time, and mutant versions proliferate rapidly and endlessly.... [T]he lineage of an image file is usually untraceable, and there may be no way to determine whether it is a freshly captured, unmanipulated record or a mutation of a mutation that has passed through many unknown hands. So we must abandon the traditional conception of an art world populated by stable, enduring, finished works and replace it with one that recognizes continual mutation and proliferation of variants.... Notions of individual authorial responsibility for image content, authorial determination of meaning, and authorial prestige are correspondingly diminished. [FN22]
One result of the proliferation of altered images is that the public will tend to make value judgments about the source of an image. As the public begins to devalue the artistic integrity and objective reliability of some sources of images, the public will correspondingly place a greater value upon sources of images that they know to reliably depict reality. Identifying the source of an image, and whether that source is trustworthy, will become more important in the collective psyche. [FN23]
Of course, creating visual images, whether they be on videotape, motion picture film, or a still photograph, has never been a purely mechanical process that created precise, purely objective depictions of reality. Photography and cinematography have always been part science and part art form, and always relied upon aesthetic creative judgment: [FN24] [D]ue to its mechanical, apparently objective nature and to its near replication of human sight, we often confuse photography with truth: "The camera does not lie." But we are mistaken. Photography's relationship with reality is as tenuous as that of any other medium. We are used to regarding the photograph, particularly in the journalistic or documentary context, as a powerful indicator that its easy comprehension is innocent both of deception and the intent to deceive. Yet photography, despite its apparent simplicity, constitutes a rich and variegated language, capable, like other languages, of subtlety, ambiguity, revelation and distortion. [FN25]
Despite the fact that photographs, videotapes and motion pictures have never been entirely objective representations of reality, their reputation for fidelity remains largely intact in the popular imagination. [FN26] Unless a photograph has some form of internal inconsistency, it will be taken as true: [FN27] In general, if an image follows the conventions of photography and seems internally coherent, if the visual evidence that it presents supports the caption, and if we can confirm that this visual evidence is consistent with other things that we accept as knowledge within the framework of the relevant discourse, then we feel justified in the attitude that seeing is believing. [FN28]
However, computers can now eliminate many of the inconsistencies and other internal clues that had betrayed previous methods of altering visual images.
The media and the creators of visual images have always had several tools at their disposal to control and modify the appearance of images. However, never before has a palette of techniques existed with the variety and power now provided by the computer. A comprehensive description of the current technology used to alter visual images is beyond the scope of this article. [FN29] However, a general summary of some of this technology may help put the relevant legal issues into context.
The first step in the process is to translate the visual image into a form readable by computer. This is done through the process of "scanning" the visual images, by which a computer translates the visual image into thousands or millions of "pixels" (an abbreviation of "picture elements"). Each pixel represents a tiny portion of the visual image. Any existing motion picture, videotape or still photograph can be scanned. Some cameras now even initially capture the image in digital form, making it easier to manipulate those images.
The scanning process captures the particular position, tone, color and brightness associated with each pixel, and stores this information as a series of digital ones and zeros. Once entered into the computer in digital form, a pixel (or a group of pixels) can be altered, moved or have their color, brightness and other characteristics duplicated, deleted or otherwise manipulated by making the appropriate changes to the various ones and zeros representing those characteristics. Groups of pixels can be imported from one image into another image, enabling, for example, the picture of a Coca-Cola bottle to be put into the hand of Louis Armstrong in classic movie footage (what is called "object cloning" in photography or "rotoscopy" in motion pictures). The color, contrast and brightness of groups of pixels can be changed, enabling Time to darken the skin tones and eye color of the police mug shot of O.J. Simpson. Groups of pixels can be duplicated within the same image, permitting advertisers to cover up the facial blemishes of a model by copying pixels taken from a patch of "clear" skin elsewhere in that image (called "color cloning"), or permitting magazine layout artists to extend the sky or other background elements of a photograph in order to fit the image into the available space on a page (called "reverse cropping"). Groups of pixels can also be deleted from an image and replaced with other objects (such as Ford's removal of black and Indian workers from its advertising and replacing them with white workers moved from the background). Pixels can also be manipulated in other ways, for example by using computer technology to animate still photos, and thereby put formerly static images into motion. [FN30]
Cropping images, changing brightness, creating collages and airbrushing details are nothing new for photography and filmmaking. However, doing these tasks with digital computer technology allows changes to be made with a speed, accuracy and realism that previous methods never approached. Prior methods of creating collages and airbrushing could take hours (or even weeks in the case of motion pictures or video). Computers can make these same changes in a fraction of the time it used to take by earlier methods, and in some cases the changes can be made nearly instantaneously. More significantly, computers allow changes to be made seamlessly, and are virtually undetectable. [FN31] The naked eye is usually discerning enough to locate the inconsistencies that result from manually altered visual images. However, computers can locate the unnatural disparities between groups of pixels, and then automatically "smooth out" and reconcile these inconsistencies.
Once in digital form, a computer image file can be endlessly copied, distributed, and experimented with, without any degradation in quality from the original. "Digital images are, in fact, much more susceptible to alteration than photographs, or any other kinds of images." [FN32] Because copying a digital image involves only the duplication of the series of ones and zeros stored on a computer file, copies of digital images can be made without any loss of resolution, brightness or detail. In contrast, previous methods of reproducing images, such as photographs of photographs or photocopies of photocopies, reflected continued degradation in image quality with each generation of copying. [FN33] The rapid growth of computer networks and the Internet facilitate the rapid dissemination of digital images even further. Unlike previous forms of media, such as newspapers or television, no editorial control exists over the content of the Internet. As a result, popular Internet sites have sprung up featuring allegedly "nude" sexually-explicit photographs of celebrities such as Michelle Pfeiffer and Brad Pitt. [FN34] These "nude" images are actually home-made digitally-processed montages of the faces of celebrities placed on the naked bodies of other people.
Many of these techniques are now available to laypersons with no specialized background, and are cheap and easy to use. [FN35] Continuing advances in technology will make these methods progressively cheaper and easier to execute, and even more accessible to non-professionals. In addition, software designers will continue to develop innovative and increasingly undetectable methods of altering visual images.
II. COPYRIGHT PROTECTION
A. COPYING AND CREATING DERIVATIVE WORKS FROM VISUAL IMAGES
Copyright law provides the most effective tool against the unauthorized alteration of motion pictures, videotaped images and photographs, and can prevent an existing work from being used as the digital raw material to make subsequent works. Because the essential elements of the digital alteration process involve copying some parts of an original image and then altering those parts, the digital alteration process implicates two of the exclusive rights granted by copyright law: the exclusive right to permit others to reproduce sections of a copyrighted work, and the exclusive right to create altered versions of a copyrighted work.
Copyright law provides the owner of a copyright with several valuable tools that protect visual images from subsequent alteration. A copyright encompasses the exclusive right to: reproduce the work; prepare "derivative works"; distribute copies of the work; perform the work publicly; and display the work publicly. [FN36] One or more of these rights are implicated at many stages of the process of creating and marketing a digitally altered work.
The initial step in digitally transforming an image requires translating the existing image into digital form. To do so, as previously discussed, the image is scanned into a binary file of ones and zeros, and then the digitized work is copied into a computer's memory. [FN37] Copying a computer file containing a copyrighted work onto a computer's memory (such as copying to a hard disk, floppy disk, ROM or RAM, or other storage device) or copying a computer file from one computer to another (such as uploading or downloading a digital image file to a bulletin board system, or transferring the file from one computer network user to another) have all been held to create a "copy" that infringes upon the right of reproduction. [FN38] Because digital files are remarkably easy to reproduce and distribute, once a visual image has been translated into digital form additional copyright infringements become extraordinarily easy to accomplish. [FN39]
Once in digital form, the image can be processed, manipulated and transformed, each of which implicates the derivative works right. [FN40] The derivative works right grants copyright owners the exclusive right to control the abridgment, adaptation, revision or other transformation of their works. [FN41] As discussed in Part I of this article, computer technology can create derivative images that amaze the eye by significantly modifying the original image, or by seamlessly combining bits and pieces from several different images into a new image. In fact, post-production digital artists can in some cases create the real value in an image, supplanting the role traditionally filled by the creator of the original image: The first, or base, image, may increasingly have no resale value.... The photographer may become, like a Third World country, counted on only as the supplier of raw materials -- the photographs -- to be somehow "refined" by those who control their publication. Processing of film, no longer necessary, may be replaced by image manipulation as a critical step in making a photograph, and the creator's decision-making will occur later in the "photographic" process. [FN42]
Although digital technology has a remarkable ability to enhance the aesthetic and commercial appeal of the original image, the fact that the copier may have added commercial value to the original does not excuse the creation of an infringing derivative work. Congress grants copyright protection in order to provide the creators of pictorial, dramatic and other creative works with a limited monopoly over the works they create, and thereby to encourage the advancement of the arts and sciences. [FN43] The economic incentive provided by this monopoly would be rendered meaningless if others could take existing images without permission and use and manipulate them at will, even if their alterations add some value to the original. The question of copyright infringement thus does not turn on the aesthetic or economic value added by the copier. [FN44]
Instead, copyright infringement generally turns on the question of whether portions of the second work are "substantially similar" to the original. Copyright law has always had difficulty in distinguishing substantial (and therefore unlawful) similarity from insubstantial (and therefore permissible) copying. [FN45] Copyright law permits slight or trivial similarities between two works and allows de minimis copying from the original work. [FN46] However, two works need not be literally identical in order for infringement to occur. As long as portions of the works are substantially similar, the copyright in the original may have been violated. It is no excuse that most or nearly all of the second work is original. [FN47] Nor does it generally matter if only small portions of the original have been copied, particularly if the copied portions represent significant parts of the original creative expression of the copyrighted work. [FN48]
Defining the threshold at which similarity becomes "substantial" will continue to be difficult in the context of digital alteration. Modern technology has created a wide spectrum of types of alterations to visual images, spanning very minor changes on one end of the spectrum, to extensive, wholesale changes on the other end. Several types of minor changes certainly create substantially similar derivative works. For example, alterations such as changing the overall brightness, contrast, hue or sharpness of the entire image, or changing the brightness or contrast of selected portions of an image to enhance or subdue elements of original, all appear to result in a substantially similar derivative work.
Other types of alterations create derivative images increasingly distant from the original. The question of substantial similarity therefore becomes more difficult to assess as applied to techniques such as rearranging or distorting the elements within an image, cutting elements from an image, combining and cloning elements from two or more images, distorting portions of the original to create stylized or bizarre images, or combining photographic images with nonphotographic media or computer-generated images. Each of these techniques takes the second work further and further from the original. At a certain point, sufficiently substantial alterations to the second work will take it far beyond the point of substantial similarity, and the second work will appear to owe little or nothing to the creative expression of the original.
However, even if the second work incorporates relatively small portions of the original, the works may still be considered substantially similar. For example, many of the above-mentioned methods of altering images involve verbatim copying of small portions of an image, which can fit into the category of infringement articulated as "fragmented literal similarity." [FN49] Fragmented literal similarity involves situations in which a small portion of the original is copied in its entirety into a second work. [FN50] For example, cloning and combining elements from one image into another image requires verbatim copying of those elements of the original and therefore involves fragmented literal similarity.
It is very difficult to set forth definitive rules for the particular quantity of fragmented literal similarity necessary to constitute an infringement. However, cases involving the digital sampling of musical works provide some guidance. In these cases, courts have held that songs that incorporated short digital "samples" of previous songs constituted copyright infringement through fragmented literal similarity, even if those digital samples constituted relatively small portions of the respective works. [FN51] These cases represent an application of the existing principle of copyright law that "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." [FN52] Even if the second artist takes only a quantitatively small amount of material, it may still be considered qualitatively important to the original. [FN53]
On the other hand, copyright law permits a copier to intentionally change an existing image sufficiently in order to avoid infringement. [FN54] Merely using an original work as a model, template or inspiration does not by itself constitute an infringement. [FN55] In fact, courts have suggested that, as long as the second work is not substantially similar to the original, it may be appropriate to permit those who copy visual images (as opposed to literary works) to make substantial modifications to an original in order to avoid infringement. [FN56] Nonetheless, the analysis of substantial similarity focuses upon the similarities between the two works, and not the dissimilarities. [FN57] Even if a derivative visual image does not incorporate any verbatim sections from the original, substantial similarity can be found if "the fundamental essence or structure of one work is duplicated in another." [FN58] Such situations are referred to as "comprehensive non-literal similarity," which, as applied to works of visual art, finds substantial similarity where the "total concept and feel" of the second work is the same as that of the original work. [FN59]
Copyright law (and the total concept and feel test) does not, however, provide the creator of the original image with any exclusive rights in the uncopyrightable aspects of his or her work, such as the general appearance of the persons and things depicted in the image. A copyright protects only the original, creative expression of the copyrighted work. For visual images, the creative expression of an artist includes the composition and posing of the subjects of the image, the lighting, the combination and editing of sequences of individual images into a motion picture, and the many subjective and technical judgments that go into developing a finishing print from a negative. [FN60] No artist can obtain an exclusive copyright in the appearance of a physical object created by nature. [FN61]
B. FAIR USE OF VISUAL IMAGES
The fair use doctrine recognizes that not every use or modification of a visual image constitutes a copyright infringement. Even if the second image is substantially similar to the original image, the creator of the second image may still claim that its use of the first image is a permissible fair use. The fair use doctrine is an affirmative defense to a claim of infringement, which acknowledges that some uses of a copyrighted work, such as those for the purposes of commentary, criticism or parody, should be permitted. Determination of whether a particular use is a fair use requires analysis of four factors: (1) the purpose and character of the copier's use of the original; (2) the amount taken from the original; (3) the nature of the original; and, (4) the effect of the use upon the market for the original. [FN62] Many courts have held that the most important of these factors is how the use affects the current or potential markets for the original. [FN63]
Given the importance in the fair use analysis of the effect upon the potential market for the original, the fair use doctrine does not necessarily excuse the use of small "samples" of portions of existing images, even if those images form only a small portion of the second image. Photographers may soon exploit a market for such "stock" images (such as background images, pleasant swatches of grass or sky, cars, buildings or other figures), that can be cut and pasted or "cloned" into new images. Such a market already exists for computer "clip art" (stock illustrations that can be incorporated into computer documents) and stock photographs and film footage (which can be incorporated in unaltered form into print media or motion pictures). Permitting the unauthorized use and alteration of bits and pieces of existing visual images to create new images may prevent copyright owners from developing these new markets for their works. [FN64]
The question of fair use is always fact-specific. [FN65] Some cases have turned upon whether the use of the original work is significant to the second work, or whether the second work only "incidentally" uses the original. For example, in a case involving the movie 12 Monkeys, the court found that featuring a copyrighted sculpture in a few minutes of that 130-minute long movie did not constitute a fair use because those few minutes of footage featured the sculpture prominently. [FN66] Other factual situations have led to the opposite result, and have held that a particular use of an existing visual image in a later audiovisual work constituted a fair use where the use of the previous work was only incidental and not a significant part of the second work. [FN67] Other cases have focused upon the nature of the original work. For example, in one recent case involving documentary film footage incorporated into a film biography of Muhammad Ali, the court indicated that fair uses of images captured from historically significant events may be far broader than uses of other types of visual images. [FN68]
The manner in which the copier uses the original work is also significant in the fair use analysis. Existing law recognizes that sufficiently "transformative" uses of an original qualify as a fair use. One of the most powerful creative tools for altering images is the new-found ability to transform the meaning of existing images by placing those images into a new context. Computer artists may therefore claim that placing an existing work (or a portion of an existing work) into a new context transforms the original and is a fair use.
Analyzing whether a particular use is sufficiently transformative to qualify as a fair use is highly fact-specific, and depends upon an analysis of all four of the fair use factors. There are certainly some situations in which digitally recontextualizing an image may be sufficiently trans-formative to constitute a fair use of the original. For example, using digital technology to parody an original work appears to be a strong candidate for fair use. Distorting, cutting and pasting, or otherwise changing images for the purpose of making a humorous or critical commentary upon the original work can be sufficiently transformative to constitute a fair use, even if the parody is created for a commercial purposes. [FN69] For example, in one case, the court found that a movie advertisement for the comedy film The Naked Gun 33 1/3 featuring a photograph of actor Leslie Nielsen that had been digitally manipulated to look like the famous Annie Leibovitz Vanity Fair photograph of the pregnant and naked Demi Moore constituted a non-infringing fair use parody. [FN70] The court reasoned that because the photograph of the naked and pregnant Nielsen made some critical commentary upon the substance of the original composition, this use of digital manipulation technology should be considered a fair use. However, other cases indicate that visual artists who transform existing works of art by using computer technology solely to put existing works into a new context may have difficulty establishing a fair use defense. Two cases involving copyrighted pop-culture images that the artist Jeff Koons recontextualized into three-dimensional sculptures held that translating these existing works into a new medium constituted copyright infringement, even though the artist used those recontextualizations to make a legitimate artistic statement. [FN71]
C. COPYRIGHT OWNERSHIP OF VISUAL IMAGES
As discussed above, the rights granted by copyright law provide a very effective weapon to prevent the alteration of visual images. However, those rights are limited to the copyright owner. Copyright ownership initially vests in the "author" of a work. Because the creation of motion pictures, television shows and other visual media involves the artistic contributions of many people, the question of who is the author -- and therefore the owner of the copyright in those works -- can be complicated. Fortunately, contracts and industry customs help clarify the question of who owns the copyright of most motion pictures, television shows and commercially-produced photographs.
The contractual agreements entered into in the creation of most motion pictures and television shows provide that most of the persons involved in the creative process will not own the copyrights in those works. For example, the standard form agreements of the Directors Guild of America and the Screen Actors Guild do not claim that directors or actors own the copyrights in the films on which they work, and acknowledge that the producers own the copyrights in those films. [FN72] Except in unusual situations, directors, actors and cinematographers will not own the copyrights in their motion pictures or television shows. [FN73] As Congress has found, "Those who participate in a collaborative effort, such as an audiovisual work, do not typically own the economic rights. Instead, audiovisual works are generally works-made-for- hire." [FN74]
However, as a matter of contract law, directors, actors and cinematographers may retain the contractual right to prohibit the copyright owner from using the images included in an audiovisual work for unauthorized purposes. For example, the Screen Actors Guild basic form agreement provides that: "No part of the photography or sound track of a performer shall be used in any picture, or other programs, whether filmed, taped, live or in any other medium, other than the one for which he was employed, without separately bargaining with the performer and reaching an agreement regarding such use." [FN75] This type of contractual provision prevents even small segments of footage from a completed work from being incorporated in altered form, in whole or in part, into subsequent works.
Furthermore, contractual provisions can also grant those artists who do not own a copyright interest the right to limit how their creative contributions to the initial work may be altered by subsequent users. A small minority of directors (as well as some actors) have sufficient leverage to receive the contractual right to control the creation of the "final cut" of a film, and thereby prevent the producer or studio from altering or distorting the initial work. Dustin Hoffman, Woody Allen, Paddy Chayefsky, Warren Beatty, Federico Fellini. Sergio Leone and Otto Preminger have all asserted contractual rights to limit the alteration of their films (with mixed results). [FN76] However, actors, directors and cinematographers generally do not retain a contractual right to prevent the copyright owner from modifying the appearance of their work. For example, the Directors Guild standard form agreement gives the producer, and not the director, the right to alter or modify images to complete the "final cut" of a motion picture. [FN77] This standard form agreement grants directors only a right to be consulted during the creation of the final cut and during any post-production technological modifications of a theatrical motion picture, such as colorization or modification for television performances. [FN78] Nonetheless, even if a director does not retain the contractual right to control the alteration of his or her work, the relationship between a particular director and producer may, as a practical matter, leave the director with complete control over any alterations to the film. [FN79]
Photographers are more likely to own the copyrights in the images they create than are motion picture and television directors. Most photographers (particularly news photographers) work as independent contractors and retain the copyrights in their photographs. [FN80] If a photographer owns the copyright in his or her images, the photographer usually licenses these copyrights to publications under "one-time use" licenses. [FN81] On the other hand, many photographs, such as those specially commissioned for commercial advertising, may be subject to a contractual agreement in which the photographer acknowledges that the party who commissioned the photograph, and not the photographer, owns the copyrights. [FN82]
If contractual provisions fail to resolve the question of copyright ownership in a visual image, the "work-for-hire" doctrine of copyright law may apply. The work for hire doctrine provides that in certain circum-stances, the artists who create a copyrighted work will not own the copyright in that work. Instead, the individuals for whom they prepared the work own the copyright. The work for hire doctrine applies to either: (1) works prepared by an employee within the scope of his or her employment; or (2) works prepared by special order or commission if the parties agree in writing that the work shall be a work for hire. [FN83]
Determining whether a particular work is a work for hire requires a fact- intensive inquiry that looks to the circumstances surrounding the creation of the work. [FN84] The definition of "work for hire" in the statute specifically anticipates that works specially ordered or commissioned "as a part of a motion picture or other audiovisual work" may be works for hire, [FN85] although the specific facts of each case must be carefully evaluated, as demonstrated by the 1990 decision in Geshwind v. Garrick. [FN86] The Geshwind case involved a computer-animated film, in which the producer of the film did not enter into written agreements with those involved in creating the film. Lacking agreements that would have clarified who owned the copyrights in the work, the court analyzed the specific roles that each of the parties played in the creation of the work. The court rejected claims of authorship raised by the producer of the film, and found instead that the computer animation artists who created the film were the "authors" of the work for copyright purposes. The court rejected the producer's claim that his general oversight of the project made him the author for copyright purposes, and found that the actual animators were the true artists on the project, who therefore owned the copyright in the images. [FN87]
Current case law involving photographers further demonstrates that questions of copyright ownership rely upon fact-specific inquiries. Some early cases contained sweeping language that the subject of a photograph owned the copyright in the photographic image. [FN88] However, current copyright law does not lend itself to such hard-and-fast rules, and courts now focus upon the factual question of whether the artist or the commissioning party was the "motivating factor in producing the work." [FN89] If the artist created the image on his own initiative, at his own expense, or for his own benefit, then the image will generally not be considered a work for hire, and the artist will own the copyright in the image. [FN90]
Although visual artists may initially own the copyrights in their creations, they may subsequently license away those copyrights in whole or in part. If the artist unconditionally licensed away the right to create derivative works, the artist generally cannot maintain a cause of action for copyright infringement if the licensee makes unauthorized changes, even if the artist retained the contractual right to approve subsequent alterations or other editorial changes to his work. [FN91] Instead, the artist must seek relief under a theory of breach of contract, rather than copyright infringement. For example, in 1932, Dr. Seuss granted a magazine a license to "all rights" in some of the images that he illustrated. [FN92] When the magazine later created three-dimensional dolls in 1968 based upon altered versions of the characters depicted in the illustrations, Dr. Seuss was unable to prevail on a claim for copyright infringement. The court found that Dr. Seuss' only rights would be the magazine's breach of the contract by which Dr. Seuss licensed away the copyrights. [FN93]
Ownership of the copyright in a complex audiovisual work -- such as a motion picture -- does not necessarily carry with it ownership of all rights related to the work. As discussed in Parts IV and V of this article, copyright ownership in motion picture footage or a photograph does not necessarily carry with it any rights to commercially exploit the images of the persons depicted in that film, nor does it permit the alteration of those images in a defamatory manner. [FN94] Similarly, as discussed in Part III of this article, the creators of a work of visual art or an audiovisual work may be able to prevent substantial distortions of the work under moral rights or false designation of origin theories, even if they do not own the copyrights in those works. Moreover, complex audiovisual works often build upon and incorporate other preexisting copyrighted works. For example, underlying works such as screenplays, musical works, and choreography may each be entitled to separate copyrights, even if these underlying works are later incorporated into a movie. [FN95] As a result, altering a portion of a movie that incorporates such preexisting copyrighted works may violate the copyright in those underlying works, regardless of whether those alterations would violate the copyright in the film itself. Those who alter segments of film must therefore obtain appropriate licenses from the owner of the copyrights to all of the separately copyrightable underlying works incorporated into the film.
Copyright law also distinguishes ownership of a particular physical copy of a visual image from the distinct legal issue of ownership of the copyright in that image. Ownership of a particular copy of a work does not carry with it any interest in owning the copyright to that work. [FN96] Thus, merely because someone owns a print of an image, that person may generally not copy or alter that image without the consent of the copyright owner. [FN97]
As a technological issue (rather than a legal issue), ownership of high-quality high-resolution physical copies will still be important to creating digital versions of the work. In order to digitize properly, the highest-resolution original should be used. As a result, even if a digital artist obtains a license from the copyright owner, the artist may still have to obtain the right to use a high-quality original from a third party, even if that third party does not own the copyright in the image. Similarly, if an image is uncopyrighted, the possession of archive-quality originals may still be a lucrative source of income for the owner. [FN98] As visual images increasingly become the raw material for others to mold, digital artists will seek out the raw materials with the fewest flaws.
D. WORKING WITH PUBLIC DOMAIN VISUAL IMAGES
As shown above, digitally altering copyrighted visual images presents substantial risks of copyright infringement. To avoid these risks, artists may want to use images that have fallen into the public domain and are therefore unprotected by copyright law. Copyrightable works can fall into the public domain for several reasons. First, copyrightable works lose their copyright protection after a fixed period of time. [FN99] Second, works can lose their copyright protection if the copyright owner failed to follow any of the "formalities" of copyright law, such as registering and renewing the work with the U.S. Copyright Office. [FN100]
Although altering public domain originals may not present copyright problems, using public domain originals does not provide one with carte blanche to modify the images at will. As discussed in the remainder of this article, a digitally- altered visual image may still violate rights under other legal doctrines. Even if an image is uncopyrighted, the owners, creators, subjects or prior users of that image may have enforceable rights under right of publicity, defamation, unfair competition, and moral rights laws.
One attraction of working with public domain originals is that creating an altered digital version of a public domain work may entitle the creator to copyright protection for his contributions. An artist is entitled to own the copyright in whatever original creative expression he adds to the existing work. [FN101] Artists must add very little to a public domain original to obtain copyright protection. [FN102] Previous cases establish that very small modifications to the visual appearance of public domain originals constitute the modest level of creativity required to obtain a copyright in the subsequent version. [FN103] Thus, such digital manipulation techniques as colorization, "reverse cropping" and color cloning appear to satisfy the "modest" level of creativity required to merit copyright protection, [FN104] and the Copyright Office now accepts copyright registrations for colorized versions of classic films that have fallen into the public domain. [FN105]
On the other hand, merely transforming an existing visual image into digital form -- without making any changes to the appearance of the work -- may not be sufficiently creative to merit copyright protection. Several cases have held that merely putting an existing public domain work into a new medium is not sufficiently creative or original to merit protection, even if the reproduction required special manufacturing or technical skills or training. [FN106] However, where the transformation of a preexisting work into a new medium involves subjective, creative interpretations, the original aspects of the second work may be entitled to copyright protection. [FN107] Alternatively, the digital representation of a scanned public domain image may be entitled to copyright as a compilation of factual information about that image. [FN108]
III. THE "MORAL RIGHTS" OF VISUAL ARTISTS
A. THE VISUAL ARTISTS RIGHTS ACT OF 1990 AND STATE MORAL RIGHTS STATUTES
Both the federal government and many individual states recently enacted statutes recognizing the "moral rights" of artists, which are intended to prevent the unauthorized alteration of artistic works. However, despite their often grandiose names, these statutes protect only limited categories of visual artwork, and have not yet been widely used.
Moral rights refers to a unified system of laws that protect works of art and the reputations of the artists who create them. Generally, moral rights include two basic protections: a right of "integrity" and a right of "attribution." [FN109] The right of integrity ensures that artists can protect their works from modification and destruction. The right of attribution ensures that artists are correctly identified with the works of art that they create, and that they are not identified with works created by others. [FN110]
Conceptually, moral rights are entirely separate from the economic rights established by copyright law. Most European nations have legal traditions that acknowledge the non-economic value of artistic works, and embrace moral rights as essential parts of their legal systems by recognizing that presenting an altered version of an artist's work can damage the artist's reputation and misrepresent the artist's work to the public. As a result, European moral rights provide substantial protection against the digital alteration of works of visual art in those nations. However, the United States bases its intellectual property laws upon the economic value of creative expression, and refused to accept moral rights until recent international treaty obligations made this a necessity. In 1988, the United States joined the Berne Convention -- the leading international intellectual property treaty -- which requires some form of moral rights protection in its member countries. [FN111] As a result, Congress passed the Visual Artists Rights Act of 1990 ("VARA").
Despite its name, VARA provides only limited protection to a very narrow class of artistic works -- those considered to be works of fine art. [FN112] Many of the works most susceptible to digital alteration fall outside VARA's definition of works of fine art, and therefore remain unprotected by VARA. For example, VARA explicitly excludes from protection motion pictures, audiovisual works, posters, electronic publications, magazines, newspapers, works of applied art, and several other categories of work. [FN113] Only a narrow class of photographs fall within VARA's scope: still photographic images produced solely for exhibition purposes in a limited edition of 200 copies or fewer, and that are signed and consecutively numbered by the author. [FN114] VARA specifically excludes photographs produced for newspapers, magazines and other non-exhibition purposes. [FN115] Still frames from motion pictures cannot qualify for VARA protection. Moreover, VARA also fails to protect works created on a work-for-hire basis. [FN116] Given these exclusions, VARA will likely not even apply to digital alterations of most commercially-produced visual images.
Even if a visual image falls within the narrow class protected by VARA, significant exceptions further circumscribe the protection offered to that work. For example, VARA does not protect digitally altered works that are incorporated into a different context, such as a motion picture, audiovisual work, magazine, newspaper, electronic publication or similar type of work. [FN117] This provision eliminates the ability of artists to use VARA to prevent digital alterations of their works in most commercial contexts and in the mass media. [FN118] Thus, although limited displays of such works at art galleries and private collections are not permissible under VARA, distorted versions of works may apparently be disseminated widely to the public through mass media. This is certainly an analomous result, given the fact that widely distributing distorted versions of an artist's work in the mass media would presumably harm an artist's reputation more than would a limited dissemination in an art gallery.
In the event that a visual image qualifies for VARA protection, VARA prohibits modifications and distortions that are prejudicial to the author's honor or reputation. [FN119] Whether a particular alteration harms an author's honor or reputation must be analyzed on a case-by-case basis. However, Congress intended this "honor and reputation" standard to be essentially the standard required under the Berne Convention, [FN120] and the manner in which other countries have applied this standard provides some guidance as to what types of alterations will harm an artist's reputation. [FN121]
Because moral rights arising under VARA are distinct from the economic rights in a creative work that arise under copyright law, the rights of attribution and integrity lie with the author, and not with the holder of the copyright in the work. [FN122] Moral rights are also distinct from ownership of individual copies of a work. [FN123] Thus, even if an individual purchases a print of a photograph protected by VARA, the purchaser cannot then digitally alter the work as he sees fit. Although artists may waive their moral rights in a photograph when selling prints of that photograph, courts construe all waivers of VARA rights narrowly, and in favor of the artist whenever possible. [FN124]
Because VARA does not prevent the digital alteration of most visual images, artists must look elsewhere to protect their works. Some states (including New York, California, Louisiana, Massachusetts and several others) have their own statutes that protect visual images from unauthorized alteration. [FN125] The plain language of these statutes appear to prevent most digital alterations. For example, New York's Artists' Authorship Rights Act prohibits the knowing public display, publication, or reproduction of a protected work in "an altered, defaced, mutilated, or modified form." [FN126] The California Art Preservation Act protects the right of integrity for works of "recognized quality," prohibiting the "defacement, mutilation, alteration, or destruction of a work of fine art." [FN127] These state statutes may potentially fill in some of the gaps in protection for digitally altered images [FN128] and appear to protect categories of visual images that VARA fails to protect. [FN129] Unfortunately, very little case law currently exists that interprets these statutes.
Although VARA preempts some portions of the state moral rights statutes, VARA's legislative history indicates that state moral rights statutes can protect visual images that are beyond the scope of VARA, such as motion pictures, audiovisual works, photographs produced for non-exhibition purposes, and still frames from motion pictures. [FN130] Thus, to the extent that state moral rights statutes protect works of art beyond the limited subject matter of VARA, those state moral rights statutes do not appear to be preempted.
Even though VARA and state moral rights statutes provide limited and uncertain protection to commercially-produced visual images, many foreign countries provide robust moral rights protection to such works. [FN131] Thus, those who distribute altered visual images internationally, such as in a worldwide advertising campaign, or who alter visual images created by foreign artists, must carefully examine the applicable moral rights laws of relevant nations.
Within the U.S., given the limited nature of the moral rights provisions of VARA and state moral rights statutes, some artists may turn to the Lanham Act for relief against digital manipulation of their works.
B. USING UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN DOCTRINES TO
PROTECT THE INTEGRITY OF AN ARTIST'S WORK
Musicians, television performers and other artists have all invoked s 43(a) of the Lanham Act (and analogous state unfair competition laws) to prevent others from marketing altered versions of their works. Section 43(a) can prevent substantially altered versions of a work of visual art from being promoted in a manner that somehow attributes those altered versions to the creator of the original version. However, courts have expressed some reluctance in applying the Lanham Act as a general moral rights statute, and s 43(a) therefore has some limits.
The Lanham Act is nominally the federal trademark, false advertising and unfair competition statute, but has an expansive scope that extends far beyond false advertising or trademark infringement. Courts now routinely interpret s 43(a) to protect the public and competitors from any form of confusion as to the origin or qualities of a product. [FN132] Many different types of artists have invoked this statute to assert that unauthorized modifications to an artist's work were likely to mislead and confuse the public into believing that the artist approved of the modifications, or that the modified work faithfully represented the true qualities of the artist's work.
The best-known and most expansive use of the Lanham Act to prevent the alteration of an artistic work is Gilliam v. ABC. [FN133] In Gilliam, the Second Circuit enjoined the ABC television network from broadcasting edited versions of Monty Python's Flying Circus, the irreverent British comedy program. ABC purchased the rights to six episodes of that program from a British television network, and intended to air two ninety-minute long specials. [FN134] ABC edited the show in many ways in order to fit approximately twenty-five minutes of commercials into each ninety-minute special and to make the show acceptable to U.S. censors and advertisers. In a suit brought by the Monty Python writers and performers, the court held that this misrepresented the origin of the Monty Python show and therefore violated s 43(a) of the Lanham Act, stating that: the edited version broadcast by ABC impaired the integrity of appellants' work and represented to the public as the product of appellants what was actually a mere caricature of their talents.... To deform his work is to present [an artist] to the public as the creator of a work not his own, and thus makes him subject to criticism for work he has not done. Thus an allegation that a defendant has presented to the public a "garbled," distorted version of plaintiff's work seeks to redress the very rights sought to be protected by the Lanham Act. [FN135]
Other cases have applied s 43(a) and related state statutes in a similar manner to prevent old musical recordings from being altered without the original musicians' consent and then marketed in allegedly "new" albums. [FN136]
The leading case in the music context involved recordings made early in the career of George Benson, the great jazz guitarist, while Benson was one of several then-unknown members of a band. [FN137] Several years after Benson had become famous, the defendant remixed these old recordings to accent Benson's guitar work, and overdubbed sexually explicit moaning onto one song. The defendant then placed a recent photograph of Benson on the cover of the album, and repackaged the recordings as "George Benson Erotic Moods -- X Rated LP." Even though the defendant composed the works recorded by Benson and owned all of the copyrights to the masters made at those sessions, the court relied upon s 43(a) and enjoined the defendant from selling the altered recordings in this misleading fashion. [FN138]
Similarly, in Bonner v. Westbound Records, Inc., [FN139] the court found that the Ohio Players were likely to succeed on state unfair competition claims brought against their old label for releasing a "new" album of Ohio Players songs that were actually remixed older recordings by the band. [FN140] The court enjoined further sales of the album, based on a finding that the album "contain[ed] performances by The Ohio Players as subsequently interpreted, edited and substantially altered by persons other than the Ohio Players, without their consent" and was therefore likely to confuse consumers. [FN141] Other cases have reached similar conclusions. [FN142]
Given these precedents, marketing digitally-altered versions of photographs, motion pictures or television shows may misrepresent the source, origin, qualities or characteristics of these works and thereby violate s 43(a) of the Lanham Act. For example, several commentators have argued that a motion picture that has been modified in some substantial way (such as colorization) without the permission of the original director or cinematographer may be found to confuse consumers into believing that those artists approved of or created the altered version. [FN143] Prior courts have acknowledged the principle that a movie that has been modified in a substantial way that misrepresents or mangles the original work may constitute a false designation of origin that violates unfair competition laws. [FN144]
Using s 43(a) to prevent material alterations to visual images is entirely consistent with the purpose of that statute. Congress intended s 43(a) to ensure that the public can rely upon the indicated source of origin to determine the qualities of a product. The names of those responsible for creative works, such as motion pictures and photographs, are a source of origin that the public depends upon in evaluating the source, qualities and other characteristics of those works. These indications of origin will become increasingly important as technological manipulations of images become more prevalent: As it becomes easier to tamper with the evidence of the photograph, all those involved in the process of publishing photographs will personally have to vouch for the content of the image.... Like the writer, the photographer -- rather than the mechanical camera -- will need to assume responsibility for the content and authenticity of all that he or she reports. The photographer's credit line will have to become more of an author's byline. [FN145]
Because photographs have fewer references by which the viewer would suspect that they have been altered, the source of the photograph will act as a crucial validation of accuracy in the digital age. Certain photographers, photographic agencies or media outlets may develop reputations for refusing to alter images, or for making only certain types of limited changes. The name of a photographer (or other identification of the source of a visual image) may be the only reference that enables a viewer to determine how much of an image can be trusted. These photographers deserve the established legal remedy of s 43(a) to ensure that the public can rely upon their names to provide quality images that have not been tampered with, and that the work presented to the public accurately portrays their creative contributions. Similarly, consumers have every right to know whether or not a version of It's a Wonderful Life, Manhattan, or Apocalypse Now is in fact the work conceived by Frank Capra, Woody Allen or Francis Ford Coppola, or whether it is a digitally altered version as subsequently interpreted on a computer work station.
However, s 43(a) is not a cure-all for protecting the integrity of artistic works. Although some courts have interpreted Gilliam, Benson and Bonner broadly to hold that the Lanham Act "is designed not only to protect the public and the artist from misrepresentations of the artist's contribution to a finished work, but also to vindicate the author's personal right to prevent the presentation of his work to the public in a distorted form," [FN146] this broad interpretation has not been widely followed. [FN147] As in the past, courts should limit s 43(a) claims to situations involving substantial alterations. Section 43(a) should not be used to prevent minor changes to a visual image made by the copyright owner.
Previous cases have declined to apply s 43(a) where the changes to visual images were immaterial. For example, in Paramount Pictures Corp. v. Video Broadcasting Systems, Inc., the court held that reediting motion picture videotapes by adding commercials did not materially alter those works, and therefore did not violate s 43(a). The court distinguished Gilliam and similar cases by noting that the changes to the videotapes were not the "substantial and material alterations described in Granz and Gilliam.... Whatever pre-recorded material that is overlapped or distorted is not represented or advertised to be the work of Paramount." [FN148] Similarly, in cases involving edited-for-TV movies, courts have limited relief under unfair competition theories to situations in which the editing materially alters and "garbles" the original. [FN149]
Recognizing a broad independent right of artists to control the alteration of their works under theories of unfair competition law creates an inevitable tension with the economic rights of copyright owners. Producing complex audiovisual works, such as motion pictures or television shows, requires copyright owners to expend enormous amounts of money and to expose themselves to substantial financial risks. This investment would quickly lose its value if the copyright owners could not control how their works are marketed and exploited. Contract law must help resolve the tension between these two competing interests. Directors, actors and cinematographers all have effective collective bargaining units that negotiate detailed standard form contracts with the copyright owners of motion pictures. These complex contractual relationships should not be disturbed by using s 43(a) to prevent the copyright owner from making modifications necessary to effectively take advantage of new markets for the work and thereby recoup the copyright owner's substantial economic investments. [FN150] However, at some point, changes become so substantial that the public's interest -- rather than the property interests of those involved in the creative process -- become implicated.
Given the public interest in receiving accurate information about creative works, and the special nature of artistic property, courts presented with altered versions of creative works have often construed contracts in favor of the artists, and against copyright owners. Courts have used s 43(a) to enforce the right of artists to prevent the alteration of their work, even if the artists contractually gave away substantial rights in those works. In Bonner (the Ohio Players case), the court rejected the notion that the record label had the right to control the final product, noting that: Contracts in relation to literary property must be interpreted and the rights of the parties determined with regard to the special nature of the thing which is the subject of the contract. While the parties may each make suitable corrections [to an artistic work] for the sake of technical accuracy, the inference is that a publisher has no right to make material alterations or omissions unless that right is expressly given or plainly implied from the language of the contract under which the author parts with his property rights in the work; and the publisher cannot publish the manuscript as being that of one other than the true author. [FN151]
Even though the Ohio Players granted their label "any property rights" in the recordings, [FN152] the court found that the contract did not permit material alterations such as writing and recording new music and words and adding this new material to the plaintiffs' performance, unless the Ohio Players specifically relinquished the right to protect their creations from substantial alterations. Similarly, in the earlier case of Granz v. Harris, Judge Frank's opinion states: An artist sells one of his works to the defendant who substantially changes it and then represents the altered matter to the public as that artist's product. Whether the work is copyrighted or not, the established rule is that, even if the contract with the artist expressly authorizes reasonable modifications (e.g., where a novel or stage play is sold for adaptation as a movie), it is an actionable wrong to hold out the artist as author of a version which substantially departs from the original. [FN153]
Moreover, sound business reasons exist for clients who purchase or license images from photographers and other visual artists to limit the type of alterations made to those works. Even if the contractual agreement grants the client unlimited authority to modify the image (as is often the case in the context of commercial advertising), the client risks damaging any ongoing relationship with the artist (as well as with the artist's agency) by distorting the artist's work.
IV. RIGHTS OF PUBLICITY
Rights of publicity protect an individual's right to control the commercial exploitation of his or her identity, and represent an emerging and rapidly changing area of the law. [FN154] The statutory or common law of over 30 states now recognizes a right to control the commercial appropriation of an individual's name, likeness and reputation. [FN155] Commercial appropriation is not limited to advertising, and can occur through the unauthorized use of someone's image in motion pictures, television shows, magazine articles, or a wide variety of other commercial contexts. [FN156] Most states do not limit these rights to celebrities, and extend them to private citizens as well. [FN157] In addition, rights of publicity exist independently of copyrights -- even if one owns the copyright to a photograph or other visual image, one does not necessarily also own the right to commercially exploit the images of the persons appearing in that image. [FN158]
Commercially exploiting an altered image that places an individual into an unexpected context or distorts their appearance misappropriates that person's proprietary right in their identity, and therefore implicates their right of publicity. For example, one well-known case involved a fashion article appearing in a 1971 issue of Esquire magazine that incorporated an altered photograph of Cary Grant originally taken in 1946. The original photograph depicted Grant wearing a classically elegant formal suit, while the alteration replaced Grant's suit with a not-so-elegant contemporary cardigan jacket (it was 1971, so one can only imagine how ugly the jacket was). [FN159] The court ruled that Esquire's altered photograph could infringe Grant's right of publicity, despite the facts that the text and context of the altered photograph indicated unambiguously that Esquire had cut and pasted contemporary clothing into old photographs, Esquire apparently owned the copyrights in the photographs, and Grant willingly posed for the original image in 1946. [FN160] The Grant court stated (using the English fashion model Twiggy as an example): "A fortiori, no magazine could without her consent crop [Twiggy's] head off a posed photograph and superimpose it on the torso of another model." [FN161]
As the Grant case shows, altering an existing photograph, motion picture or videotape of a person for use as the "raw material" to create a subsequent work harms that person by misappropriating the commercial value of their image, and appears to present a straightforward example of a violation of rights of publicity. [FN162] If someone permits their image to be used for one purpose, they have every reason to expect that their image will not be exploited for a different, unanticipated purpose years later. When Louis Armstrong, Humphrey Bogart, Lucille Ball and Jackie Gleason appeared in their respective motion pictures and television shows during the 1940s and 1950s, they had no way of anticipating that, four decades later, their acting would be incorporated into Diet Coke and Diet Pepsi commercials, in which they would co-star with the as-yet-unborn Elton John and Shaquille O'Neal. [FN163] Thus, digital artists who incorporate portions of stock images into subsequent works face the risk of right of publicity claims from the subjects of those images, unless (as discussed below) those persons contractually waived their right to control subsequent uses of their image when they originally posed for the camera. [FN164]
Rights of publicity also provide individuals with the ability to limit the extent to which their appearance may be altered as part of the process of creating the initial image. An actor, model or other person may consent to be filmed, but then find that their appearance has been altered substantially in the final, published version, or that the back-ground or context of the photograph has been altered in an unanticipated way. An actor or model can consent, either in advance or after the fact, to permit the copyright holder to alter their image in whatever way they choose. However, consents are rarely unambiguous, and interpreting the scope of an individual's consent presents a number of difficulties.
Rights of publicity originated in an individual's right to privacy, but are now viewed as a property right that may be assigned in whole or in part. [FN165] Professional actors and models, as well as the unprofessional subjects of visual images, may contractually give away any portion of these property rights. They may allow the copyright holder to alter the subject's image in creating the initial work, or may waive the rights to control the incorporation of their image into subsequent works. Given the many ways in which rights of publicity can be transferred, many of the most significant questions regarding rights of publicity and altered images involve contract interpretation.
Courts have found the language of some consents broad enough to permit the alteration of an individual's image, even if that individual objected to the alteration. For example, in one case, a model posed for photographs that he knew would be used for advertising, although the precise type of advertising was unspecified at that time. Prior to the modeling session, he signed a release permitting the photographs to be "distorted in character or form" and to be used "for art, advertising, trade or any other lawful purpose whatsoever." [FN166] Given the broad language of the release, the model was unable to prevent the photographer from altering these photographs by adding a beer bottle and beer glass and using the photographs in a beer advertisement, even though the model claimed that associating him with alcohol offended him and would hurt his modeling and basketball careers. [FN167] In another case, a fashion model posing for legitimate fashion photographs executed a release that the court found broad enough to permit the photographer to incorporate one of those photographs into the cover of Hustler (a particularly sleazy pornographic magazine) three years after the photographs were taken. [FN168] The court's opinion in that case explicitly warned models and actors to exercise caution when signing releases, warning them that their images might be used in the future in unflattering contexts. [FN169]
However, many courts interpret consents for the use of a person's image very narrowly. Courts have not hesitated to rule that particular consents were not broad enough to cover unanticipated uses of someone's image. [FN170] In the Grant case, for example, the Court found it "irrelevant" that Grant had executed a consent twenty-five years earlier for the initial 1946 photograph. [FN171] In another case, the court found that an actor's consent to use his image in a motion picture did not permit a telegraph company to use an altered version of still photographs from that film for advertising purposes, ruling that: [T]here is no proof that plaintiff authorized any picture except a true one. A "composite" picture, brought about by double printing or new matter added to a true photograph creates a new picture different from the one for which the subject posed. [FN172]
Given the realism of current methods of altering visual images -- which present many unforeseen ways to change someone's image and an infinite number of other images that their image can be combined with -- consents and releases to use one's image should be interpreted narrowly. It is simply impossible for actors, models and the other subjects of visual images to anticipate the different ways in which their images may be altered prior to publication; nor can they anticipate the different contexts in which their image might be incorporated years later. The fact that these changes can be made on a computer -- without the presence or participation of the subjects of the image -- makes it even more important that consents be carefully scrutinized when an image is altered. In the past, a person being filmed could merely look around the studio to see the context in which their image would appear. If a photographer, cinematographer, scriptwriter or make-up artist wanted the subject to appear in an unflattering or offensive manner, they would have to make these unflattering or offensive changes with the subject present in front of the camera, where they could object or otherwise participate in the creative process. Now, however, these changes can be made long after the person has left the studio. A smile can be turned into a menacing frown, a new actor can be added to a scene, and a scenic background can be turned into a seedy interior, all without the subject's presence or knowledge.
Aware of the mischief that digital alteration can cause, professional acting and some modeling contracts now often explicitly limit the manner in which images may be altered. The precise extent that performers retain control over how their work may be changed depends upon the contractual rights of the performer and the leverage that the performer has in the creative process. Collective bargaining units, such as the Screen Actors Guild, have sufficient leverage to insist upon standard form contracts that prohibit the copyright owner from incorporating an actor's image into subsequent works unrelated to the initial work. However, the Screen Actors Guild otherwise leaves the director and producer free to modify an actor's work in creating the initial work in almost any conceivable way. [FN173] Some actors, however, maintain sufficient leverage to have substantial input in decisions on how their work can be manipulated.
The modelling business, unlike film and television acting, is not unionized. As a result, the content of modelling contracts are far more variable than the standard SAG contracts used in film in television. The extent to which a photographer or client may alter a model's image in creating the initial photograph, or incorporate the model's image into subsequent works, depends on the relative bargaining power of the client, the photographer, the individual model, and the model's agency. [FN174] However, even if a contract permits unlimited modifications to a model's photograph, a client or photographer risks damaging its ongoing relationship with the model and his or her agent if they substantially distort or manipulate that image.
One of the most significant issues to consider in right of publicity claims related to altered visual images is the "newsworthiness" exception. Rights of publicity are concerned solely with the exploitation of an individual's image for commercial purposes, and do not prevent "newsworthy" uses of that image. As a result, the media is free to use an individual's image as part of legitimate coverage of newsworthy events or topics of public concern, without violating that person's right of publicity. The newsworthiness exception applies not only to "hard" news, but also extends to softer news and "infotainment," such as reporting on social trends and matters of interest to consumers. [FN175] However, although newsworthy uses of images are outside the scope of rights of publicity, defamation law prevents the news media from manipulating photographs and videotape at will. If an altered image is used for newsworthy purposes, that image must be analyzed under defamation principles. As discussed infra, defamation claims differ from right of publicity claims in several important respects, and the interrelationship between these two distinct legal doctrines plays an important role in defining the limitations upon the digital manipulation of visual images.
Several entities have begun to develop new markets for old news footage by attempting to market digital versions of those images in new derivative images. However, the newsworthiness exception does not necessarily permit the media to create new markets for their accumulated stockpile of previously-newsworthy footage and still photographs. Newsworthy photographs may lose their newsworthiness over time. If they are no longer newsworthy, the persons depicted may regain the right to limit the commercial exploitation of their images by asserting their rights of publicity. [FN176] For example, the sailor featured in the famous Life magazine World War II photograph of a sailor kissing a nurse in Times Square on V-J day brought suit against Life for commercially selling limited editions of the photograph for $1,600 each in 1980. [FN177] The court denied Life's motion for summary judgment, ruling that while the photograph may have been newsworthy in the past, its subsequent use decades later for commercial purposes no longer fit within the newsworthiness exception. [FN178] Given the impermanence of the newsworthiness exception, media who accumulate newsworthy videotape, film footage or photographs, may be unable to later market altered versions of those accumulated images for other commercial purposes. [FN179]
The interrelationship between rights of publicity, defamation, and the First Amendment has several important implications for altered photographs. The First Amendment gives the media substantial freedom to report, criticize and comment upon newsworthy events and public figures. When the media uses a person's image in connection with reporting upon a newsworthy event, defamation law applies. Under defamation law, the media can only be liable if it presents some false and harmful statement of fact to the public. [FN180] As discussed below, altered photographs may falsely convey factual information to the public, and therefore give rise to a defamation claim. In contrast, where the media's use of a person's image is primarily for the purpose of commercial exploitation, rights of publicity apply, which do not require that any false or harmful statements be made to the public. [FN181] The harm arises from unauthorized commercial use of a person's image, regardless of the truth, falsity or harmfulness of the image presented. [FN182] In addition, the First Amendment requires that the media can only be liable for defamation if the media acted with some form of malicious intent towards the person defamed. For public figures, that malicious intent must rise to the level of reckless disregard for the truth or falsity of the facts presented to the public; [FN183] for private individuals, the media must act at least negligently. [FN184] Rights of publicity, in contrast, are a property right (rather than a tort such as defamation) and do not require any form of malicious intent on behalf of the media. [FN185] And finally, even a party proves that he will be defamed by a false assertion of fact, that party is limited to money damages, and will not be able to obtain an injunction against the dissemination of the defamatory materials. [FN186] Violations of an individual's right of publicity, in contrast, can be enjoined. [FN187]
Thus, distinguishing commercial exploitation of an altered version of a person's image from uses of that image for the purpose of reporting, criticizing or commenting upon a newsworthy topic plays a vital role in determining the legal rights of the person depicted. The First Amendment does not permit a person depicted in a newsworthy image to avoid the evidentiary burdens of a defamation claim merely by recasting a defamation claim as a right of publicity claim. [FN188] If the essence of a claim is false speech on a newsworthy topic, courts have held that the constitutional constraints imposed upon defamation claims must be applied, regardless of how the claim is styled. [FN189] However, where the essence of the claim is commercial appropriation of an individual's image, the constitutional requirements do not come into play, and the more lenient standard applicable to right of publicity claims may apply.
Legitimate news organizations, such as Time and Newsweek, have digitally manipulated visual images to dramatize and illustrate news stories. [FN190] Because visual images have a perceived authority in the mind of the public for accurately conveying factual information, altered images have a substantial ability to harm the subjects of those photographs and to mislead the public. [FN191] However, the law of defamation (and the closely- related doctrine of "false light" invasions of privacy) can prevent the media from presenting altered visual images in contexts that convey false factual information about the subjects of those images.
The precise elements of a defamation claim vary depending upon the identity of the plaintiff, the identity of the defendant, the character of the allegedly defamatory statement, and the jurisdiction whose law applies. [FN192] All defamation claims require a threshold showing that a false and defamatory statement has been made. Truthful statements are absolutely privileged, and cannot be defamatory. However, not all false statements are defamatory. False statements only become defamatory if they "tend to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him," or "tend to injure 'reputation' in the popular sense; to diminish the esteem, respect, good will or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him." [FN193] Communications that are merely unflattering, annoying or embarrassing are not actionable as defamation unless they injure an individual's reputation. [FN194] Similarly, statements of opinion (as opposed to statements of fact) are not defamatory. [FN195]
False light invasion of privacy claims are very similar to defamation claims, although there are some distinctions between them. [FN196] False light claims, like defamation claims, require that the defendant make a false statement about the plaintiff to the public. The essential element of a false light claim is that a reasonable person must find the false assertion of fact "highly offensive." [FN197] False light claims generally remedy falsehoods that injure the feelings of the plaintiff, unlike defamation claims, which remedy injuries to the reputation of the plaintiff. [FN198] As with defamation claims, statements of opinion do not give rise to a false light claim. [FN199] Both defamation and false light claims differ from right of publicity claims in several respects. The most significant distinction from right of publicity are that, as previously discussed, defamation and false light claims are torts that require not only the publication of false and harmful factual information, but also require that the media publish the untrue assertion of fact maliciously. [FN200]
Altered visual images provide the media with an extraordinarily powerful tool to portray facts in an untrue manner. Many state defamation statutes recognize explicitly that a picture alone can defame a person. [FN201] The power and perceived authority of photographs in the mind of modern man give altered images a unique ability to damage reputations. [FN202] Judge Learned Hand noted the "special sting" caused by visual ridicule, [FN203] and prior caselaw demonstrates how altered versions of visual images can defame. In Uhl v. Columbia Broadcasting System, [FN204] for example, a television documentary edited film footage of a bird hunter by juxtaposing frames out of order to create the untrue impression that the hunter shot the birds while they stood on the ground. The court held that, because his fellow hunters considered this to be extremely poor sportsmanship, this manipulation of the original images could be a false light invasion of privacy.
Similarly, in Russell v. Marboro Books, [FN205] an advertiser airbrushed a photograph of a leading fashion model in order to make it appear as if she was a call girl reading a racy book. The Court found that this could defame the model by injuring the model's reputation, particularly since her stock in trade was her "physical form, presence and dignity." [FN206] And in Hickey v. Capital Cities/ABC, Inc., [FN207] a segment of the 20/20 television newsmagazine investigating stolen pets who were sold for medical research presented visual images that selectively omitted certain images in order to make it appear that an animal broker purchased stolen pets. The segment depicted a poster used by plaintiff to solicit others to sell him animals, but failed to depict the bottom half of this poster, which stated "No Stolen Pets." The court held that this alteration to the appearance of the original poster could constitute defamation.
The Supreme Court has recognized repeatedly that if the media publishes information that purports to be "a direct account of events that speak for themselves" the media cannot materially alter that information. [FN208] As long as the viewer believes that a visual image captures reality during a discrete fragment of time, there is the danger that the image will convey false assertions of fact. [FN209] Different forms of media and communication have different levels of inherent credibility attached to them. The public still believes that human intervention is still relatively limited in the mechanical process of creating a photographic image, and still views photographs in some ways as "fossilized light." [FN210] Such images maintain great credibility in the public mind, in contrast to other media such as books or paintings, both of which the public believes require more interpretation from the imagination of their creators than do photographic images. Decades of journalistic practices and ethics have conditioned the public to believe that photographs and videotapes presented in connection with news reports have either not been altered at all, or have been altered in only modest ways. Thus, photographs and videotapes presented in connection with news reporting appear to be a perfect example of the type of "direct account of events that speak for themselves" that the Supreme Court has stated should not be altered.
In the context of journalistic reporting, it is essential that photography and videography maintain the public confidence that they have earned. [FN211] A founding principle of Life magazine was that "we have got to educate people to take pictures seriously, and to respect pictures as they do not do now." [FN212] The methods currently available to alter images in undetectable and previously unimaginable ways make it possible for the media to squander the fragile, hard-earned public trust in the objectivity of newsworthy images. As digital technology changes the role of the photographer from a semi- mechanical transcriber to a more interpretive role as witness, subjective views of events and people can be camouflaged as valuable, objective information, thereby creating an "enhanced capability [of the media] to deceive and more expertly project their own worldview, camouflaging it as reporting." [FN213]
People will eventually learn how to "read" photographs and videotape and to determine what types of images are more likely to be fictionalized depictions of events. [FN214] In making these distinctions, context will be the most important tool available to the public in assessing the potential deceptiveness of visual images. [FN215] Even today, context plays an essential role in determining whether an image is likely to convey factual information, or whether viewers will instead realize that the image has been altered. For example, in the Grant case, the court rejected a defamation claim, reasoning that Mr. Grant's reputation could not be harmed by playfully placing a cardigan on his torso, particularly in light of the fact that the text accompanying the altered photograph, as well as the context in which it appeared, indicated unambiguously that Esquire had altered classic photographs by cutting and pasting contemporary clothing into place. [FN216]
Obviously, most of the public believes that a photograph appearing in the context of a newspaper report of a recent newsworthy event involved less interpretive judgment than the images that appear in a big-budget motion picture created for entertainment purposes. Falling somewhere in between these two ends of the spectrum are videotape footage appearing in the context of a televised news report (which the public assumes to require some creative interpretation in the form of editing) and photographs appearing in the context of sensationalized supermarket tabloids or such "infotainment" publications as People magazine. However, as the Time, Newsweek and Newsday examples indicate, [FN217] the legitimate news media have relied increasingly upon sensationalized stories and upon news stories about entertainment topics that the news media dramatize with altered visual images. [FN218]
Context may inform the public to distrust an image. Similarly, context can also be used to harm the subject of a visual image. Existing case law recognizes that putting an image into a new context can defame the person depicted. For example, numerous cases have found that placing an accurate photograph of an innocent person into the context of a report on criminal activity can defame the person by creating the false implication that the subject was a criminal. [FN219] Similarly, several false light invasion of privacy cases have found it unlawful to incorporate an individual's photograph into a context that the subject found objectionable. [FN220] In one case, a model who posed for Playboy prevailed on a claim of false light invasion of privacy against Hustler magazine for using photographs of her. [FN221] The court held that even though the model may have consented to have her image used in Playboy, she could still object to the use of her image in the far more "degrading" and sleazier context of Hustler magazine.
Of course, not all alterations to visual images defame the persons depicted. In some contexts, no reasonable person would believe that factual information is being conveyed. In addition, the First Amendment gives news organizations substantial leeway in choosing how to portray public figures or events of public interest. The Supreme Court recognizes that defamation law "overlooks minor inaccuracies and concentrates upon substantial truth." [FN222] Nor does defamation law prevent the media from including false "details that, while not trivial, would not if corrected have altered the picture that the true facts paint." [FN223] The media's depiction of a person is only defamatory if that depiction presents "such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man." [FN224] Many techniques currently available to the media -- such as minor color correction, eliminating scratches and other imperfections in negatives, and reverse cropping of background -- are relatively innocuous, and do not create the sort of material alterations that might defame a person. Moreover, some techniques -- such as combining individuals from different eras into a single image (such as Lucille Ball and Shaquille O'Neal) -- may create absolutely absurd or physically impossible images that no reasonable person would interpret as a statement of fact.
Consistent with the materiality requirement, many news organizations have begun to adopt guidelines for presenting altered versions of photographs and videotape. As mentioned previously, the National Press Photographers Association unsuccessfully attempted to institute rules governing the alteration of photographs, and ultimately left it to individual news organizations to adopt voluntary standards for altering images. [FN225] In addition, news photographers (who generally own the copyrights in their photographs and grant only limited copyright licenses to use their photographs) now often limit the degree to which the news media may modify their photographs, by exercising their rights under copyright law to prohibit the news media from creating unauthorized derivative works of licensed photographs. Some organizations flatly prohibit the use of altered images in connection with any news story. Most press photography agencies prohibit news media who purchase licenses for their copyrighted images from using techniques such as "flopping" those images (that is, having the left and right halves of an image switched), making any radical color changes to the image, "pixel cloning" the image other than that necessary to correct scratches or other defects, and making substantial changes in contrast. [FN226]
News agencies have also accepted the potentially troubling practice of marking their images as "photoillustrations." [FN227] This practice may be inadequate to dispel the implication that an image objectively conveys factual information. To begin with, the label "photoillustration" does not indicate what has been altered in the image. In addition, the "photoillustration" disclaimer is often a tiny footnote, located many pages away from the actual image, as was the case with Time magazine's unfortunate O.J. Simpson cover photograph. [FN228] Distant footnotes have very limited effectiveness in dispelling any misleading implications caused by an altered photograph. The ineffectiveness of a footnote or other text to explain a misleading visual image can be analogized to a false and misleading headline that the media attempts to soften by explanatory text. Several courts have accepted the notion that a headline, standing alone, can be defamatory, even if the accompanying article explains away the defamation. [FN229] Similarly, a photograph, standing alone, can convey false and defamatory information, even if an accompanying disclaimer, credit line or article explains that the image has been altered.
Existing legal doctrines provide the potential tools to effectively balance the various competing issues and interests presented by new digital manipulation technologies. However, several different legal theories must be balanced carefully against one another. No one area of the law adequately addresses the various ethical and economic issues raised by the widespread use of these new technologies. An overly expansive interpretation of any one of these separate legal doctrines -- or overprotection of the rights of any one group -- will harm the ability of other legal doctrines to protect the interests of the other groups.
Several different entities have substantial, and often competing, interests in the digital alteration of motion pictures, videotape footage and still photographs. Copyright owners expend enormous sums to create complex audiovisual works, and expose themselves to substantial financial risks. U.S. law has traditionally granted copyrights to encourage the creation of artistic and creative works, and to encourage the commercial exploitation of these works. As a result, copyright owners have been among the most innovative and aggressive in developing new markets for their works, and plan to license their existing store of visual images in a variety of new markets created by new digital technologies. The media enterprises who own the copyrights in most visual images must retain the ability to commercially exploit their copyrights in order to provide an adequate economic incentive to develop new methods for digital manipulation.
The copyright owner is not the only entity with an interest in controlling the exploitation of visual images. Many of those who participate in the process of creating visual images do not own any interest in the copyrights in those works. While some photographers own the copyrights in their works, only an extremely few motion picture directors, even fewer actors, and essentially no cinematographers or models, will own the copyrights in the images that they create. But directors, cinematographers and the persons who appear in a visual image nonetheless retain a vital interest in having some control over substantially altered versions of their works being presented to the public.
Finally, the public has an important interest in ensuring that images presented by the news media are in fact accurate reflections of reality. Modern man relies heavily upon visual media for information about the world. News agencies and photographers have invested decades in order to give visual images substantial credibility. As a result, most of the public now accepts that a visual image presented in the context of news reporting constitutes incontrovertible proof that a given event has occurred as depicted. Current digital manipulation technologies threaten to destroy this hard-won trust. The public's interest is not limited to news images, but also extends to an interest in maintaining the integrity of artistic and entertainment media. Presenting distorted versions of artistic works can mislead the public into mistakenly believing that the distorted works faithfully depict the artistic contributions of a certain director, actor or photographer.
Ownership of a valid copyright in an original visual image presents the most effective tool to control the use of this powerful new technology. Many of the basic techniques of digital manipulation unambiguously infringe upon the copyright owner's exclusive right to reproduce a work or to create derivative works from a work. Infringement may occur even if very small portions of an existing image or audiovisual work are copied. New markets are now developing that utilize bits and pieces of existing images as the digital raw material for new works. Copyright zealously protects the right of copyright holders to economically exploit this type of potential new market for their works. However, the exclusive rights of the copyright owner do not absolutely prohibit any and all uses of a copyrighted work. De minimis copying may not constitute infringement, and the fair use doctrine permits copying or manipulation of a work for the purposes of commentary, criticism or parody.
Copyright law also provides an incentive to manipulate existing images that have lost their copyright protection. If a digital artist (or the media) adds something new or different to a public domain image that makes the altered image more entertaining or more interesting than the original, they can obtain a copyright in that altered version, thereby obtaining the exclusive rights to copy, distribute and perform their modified version. Of course, this new copyright does not extend to the entirety of the original image. The original, unmodified image remains in the public domain, where others are free to experiment with it and to try to develop their own modified versions.
The exclusive rights of the copyright holder are limited by existing legal doctrines arising under rights of publicity, defamation law and s 43(a) of the Lanham Act. Each of these doctrines acknowledges that the artists who create visual images, the public, the actors, public figures and others who are depicted in visual images may each have some legal remedies that prevent the marketing and dissemination of altered versions of a visual image, regardless of whether or not the copyright holder has consented to those alterations.
Creating complex audiovisual works, as well as less complex works and still photographs, often requires the participation of many individuals other than the copyright owner. Directors, actors and photographers all have a vital interest in ensuring that their works are not presented to the public in distorted form. However, U.S. intellectual property law has been very cautious in accepting the notion of artists' "moral rights" that are separate from copyrights. U.S. law focuses upon the economic aspects of creative works, and relies primarily upon copyright law and the market-based contractual relationships between the parties to determine who will maintain control over creative works. Courts have recognized that s 43(a) of the Lanham Act, which prevents the marketing of any products that bear a false or misleading description of their source, origin, qualities or other characteristics, may prevent the marketing of substantially distorted versions of a creative work. At a certain point, altered versions of a work no longer accurately reflect the creative contribution of the artists involved in its creation, and will thereby mislead the public. However, s 43(a) has several limitations. Only substantial changes, which some courts have defined as those that "mutilate" or seriously distort the overall artistic effect of the original, are material enough to mislead the public. Moreover, the contractual relationship entered into between the copyright holder and the artist may grant the copyright holder, and not the artist, the right to make even substantial distortions of a work.
Rights of publicity provide another powerful tool to control the manipulation of visual images. Most states now recognize that individuals have the exclusive property right to control the commercial exploitation of their images. Because rights of publicity exist independently of copyrights, ownership of a copyright may not permit the unauthorized use or alteration of the images of the individuals depicted in a copyrighted image. Rights of publicity permit individuals who have consented to have their images used for one purpose to prevent the use of their images for some other unauthorized purpose. However, some consents may be broad enough to permit the creation of altered and manipulated versions of an individual's image.
Rights of publicity apply only to commercial uses of an individual's image, and do not apply to newsworthy uses of an image. Instead, the use of altered images in newsworthy contexts must be evaluated under principles of defamation law. Because of the unique credibility of visual images in the public psyche, altered versions of news images have an enormous capacity to present false and harmful facts about the persons depicted. However, the First Amendment provides the news media with substantial flexibility in choosing how to present newsworthy information. Thus, a public figure who is defamed by an altered image must demonstrate that the media presented this image to the public with at least reckless disregard of the truth or falsity of the information conveyed.
Adequate protection can be achieved only by carefully balancing each of these different legal doctrines, as well as examining the contractual relationships entered into among the various parties involved in the process of creating a visual image. Unless adequate protection is developed, the unique role of visual images in conveying accurate information about our world, and the rights of various groups to maintain some degree of artistic control over their creation of altered versions of their creative contributions, will be threatened.