TO FOOTNOTES
INTRODUCTION
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.
V. DEFAMATION
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.
CONCLUSION
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.