WINICK FOOTNOTES

BACK TO MAIN TEXT

FNa1. J.D., Duke University; B.A., Brown University. The author is a lawyer with Fross Zelnick Lehrman & Zissu, P.C. in New York. Copyright (c) 1997 by Raphael Winick.

FN1. WILLIAM J. MITCHELL, THE RECONFIGURED EYE: VISUAL TRUTH IN THE POST- PHOTOGRAPHIC ERA, at 55 (1994); Ira Teinowitz, Adman in Senator Warner Fiasco Remains on Dole's Team, ADVERTISING AGE, Oct. 21, 1996, at 54.

FN2. TIME, June 27, 1994, at cover page.

FN3. Art Golab, Picture Perfect? Don't Be So Sure, CHICAGO SUN-TIMES, March 3, 1996, at 32.

FN4. JURASSIC PARK (Universal 1992); TWISTER (Warner Bros. 1996); TERMINATOR 2: JUDGMENT DAY (Carolco 1991); ZELIG (Orion 1983); FORREST GUMP (Paramount 1993).

FN5. William H. Honan, Artists, Newly Militant, Fight For Their Rights, N.Y. TIMES, March 3, 1988, at C29.

FN6. MITCHELL, supra note 1, at 53.

FN7. Id. at 16 (citing Clare Ansberry, Alterations of Photos Raise Host of Legal, Ethical Issues, WALL STREET JOURNAL, Jan. 26, 1989, at B1).

FN8. FRED RITCHIN, IN OUR OWN IMAGE: THE COMING REVOLUTION IN PHOTOGRAPHY, at 4 (1990).

FN9. Barbara Hoffman, From Virtual Gallery to the Legal Web, N.Y.L.J., March 15, 1996, at 5.

FN10. Dale Ireland, Let the Eye Beware: Digital Manipulation of Photographic Images, SKY & TELESCOPE, June 1995, at 6.

FN11. Russell Rohde, Tune-Up or Major Overhaul? Manipulation of Photographic Images, PHOTOGRAPHIC SOC'Y OF AMERICA JOURNAL, Dec. 1995, at 8.

FN12. Two excellent resources that discuss, in detail, the perceived authority of visual images, the various modern technologies that permit the nearly undetectable alteration of visual images, and the social and cultural issues raised by this technology are WILLIAM J. MITCHELL, THE RECONFIGURED EYE: VISUAL TRUTH IN THE POST-PHOTOGRAPHIC ERA (1994), supra note 1, and FRED RITCHIN, IN OUR OWN IMAGE: THE COMING REVOLUTION IN PHOTOGRAPHY (1990), supra note 8.

FN13. Part of our reliance upon visual information originates from biological as well as social conditions. 80% of the human brain is designed to process visual images.

FN14. MITCHELL supra note 1, at 24; see Andy Grundberg, Ask It No Questions: The Camera Can Lie, N.Y. TIMES, August 12, 1990, at 21 (noting that Oliver Wendell Holmes called photographs "a mirror with a memory").

FN15. MITCHELL supra note 1, at 24.

FN16. Id. at 7; see Grundberg, supra note 14, at 21 ("Ever since its invention a shade more than 150 years ago, photography has been seen as a medium of truth and unassailable accuracy.").

FN17. MITCHELL supra note 1, at 7.

FN18. Id. at 51.

FN19. Id. at 17; see Martin Wroe, Lies, Damn Lies and Photojournalism, THE OBSERVER, Apr. 21, 1996, at 10 (quoting newspaper editors who feel that "if readers believe such photographs are being manipulated they will not believe in those which have not been" and that such actions "potentially devalu[e] the currency of all photography in its pages.").

FN20. RITCHIN supra note 8, at 5. see Bill Mahon, All the News That's Fit to Manipulate, EDITOR & PUBLISHER MAGAZINE, March 2, 1996, at 48 (use of this technology "cheapens journalism").

FN21. MITCHELL supra note 1, at 54.

FN22. Id. at 51-52; see also id. at 60.

FN23. See id. at 43-47.

FN24. See Burrow-Giles Lithographing Co. v. Sarony, 111 U.S. 53, 57-58 (1884); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903).

FN25. RITCHIN, supra note 8, at 1.

FN26. Id. at 143.

FN27. MITCHELL supra note 1, at 32-37.

FN28. Id. at 43.

FN29. A superb and comprehensive resource discussing the various modern technologies used to alter visual images, and the ways those technologies have been incorporated into motion pictures and other works, is MARK COTTA VAZ, ET AL., INDUSTRIAL LIGHT & MAGIC: INTO THE DIGITAL REALM (1996).

FN30. Each of these processes is discussed in detail in VAZ, supra note 29, and MITCHELL, supra note 1.

FN31. RITCHIN supra note 8, at 13-14; see Golab, supra note 3, at 32 (if computer alterations are done correctly, "there's absolutely no way you can tell an image has been altered.").

FN32. MITCHELL supra note 1, at 7.

FN33. Id. at 6.

FN34. An entire Internet newsgroup dedicated to these faked nude celebrity images exists, and is located at <alt.binaries.pictures.nude.celebrities.f>. See also, Hearings on S. 705 and H.R. 1240, enacted as Pub. L. 104-71 (a recently-enacted law that makes it a crime, punishable by ten years in prison, to create and distribute computer-created images that appear to depict minors engaged in sexually explicit conduct).

FN35. Some of the most advanced techniques remain accessible only to media outlets with substantial financial or technological resources.

FN36. 17 U.S.C. s 106.

FN37. See supra text accompanying notes 29 to 31.

FN38. U.S. DEP'T OF COMMERCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS, at 65-67 (the "WHITE PAPER"); MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993); Playboy Enters, Inc. v. Frena, 839 F.Supp. 1552 (S.D. Fla. 1993). These acts may also infringe upon the exclusive right to distribute the work.

FN39. WHITE PAPER, supra note 38, at 12 ("Advances in digital technology and the rapid development of electronic networks and other communications systems raise the stakes considerably.").

FN40. MITCHELL supra note 1, at 53.

FN41. 17 U.S.C. s 106(2); W. PATRY, COPYRIGHT LAW AND PRACTICE at 822-26 (1994).

FN42. RITCHIN supra note 8, at 68.

FN43. U.S. CONST., art. I, s 8, cl. 8.

FN44. For example, in 1987 and 1988, Congress held extensive hearings on proposed amendments to the Copyright Act to prevent the colorization of black and white motion pictures (the amendments were never enacted due to the perceived disruption that these rights might cause to the existing contractual relationships between directors and film studios). While most participants in these hearings agreed that colorization added substantial commercial value to these existing works, almost all of the participants also agreed that these computer-created colorized works would constitute infringing derivative works if they were created without the consent of the copyright owners. See REPORT OF THE REGISTER OF COPYRIGHTS ON TECHNOLOGICAL ALTERATIONS TO MOTION PICTURES AND OTHER AUDIOVISUAL WORKS (March 1989), reprinted in, 10 LOYOLA ENT. L.J. 1 (1990) (summarizing those Congressional debates).

FN45. See Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) ("the test for infringement of a copyright is of necessity vague") (Hand, J.).

FN46. 3 M. NIMMER & D. NIMMER, NIMMER ON COPYRIGHT s 13.03[A] (1990).

FN47. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936) (Hand, J.).

FN48. See Harper & Row Publ'g, Inc. v. The Nation Enters., 471 U.S. 539 (1985) (copying 300 words out of 200,000 word manuscript infringed copyright); PATRY, supra note 41, at 707 n.830 (reviewing numerous cases holding that copying small parts from a work can constitute a copyright infringement).

FN49. NIMMER, supra note 46, s 13.03[A]; Twin Peaks Prods., Inc. v. Publications, Int'l, Ltd., 996 F.2d 1366, 1372 (2d Cir. 1993).

FN50. NIMMER, supra note 46, s 13.03[A][2].

FN51. See Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F.Supp. 182 (S.D.N.Y. 1991); Jarvis v. A&M Records, 827 F.Supp. 282, 289 (D.N.J. 1993); Tin Pan Apple Inc. v. Miller Brewing Co., 30 U.S.P.Q.2d 1791, 1795 (S.D.N.Y. 1994); Frost Belt Int'l Recording v. Cold Chillin' Records, 758 F.Supp. 131 (S.D.N.Y. 1990).

FN52. Sheldon, 81 F.2d at 56 (Hand, J.).

FN53. See Roy Export Co. v. CBS, Inc., 672 F.2d 1095 (one minute segment of film substantially similar); see also supra note 48.

FN54. NIMMER, supra note 46, s 13.03[B][1][b] & n.128.

FN55. Id. s 13.01[B]; Wallace Computer Serv., Inc. v. Adams Business Forms, Inc. 837 F.Supp. 1413, 1416 (N.D. Ill. 1993). However, some courts have recognized the doctrine of "interim" or "intermediate" copying, which presents a possibility that infringement may still occur even if a digitized original has been changed and distorted so significantly that the final product is no longer substantially similar to the original. See Walker v. University Books, Inc., 602 F.2d 859 (9th Cir. 1979) Walt Disney Productions v. Filmation Assocs., 628 F.Supp. 871 (C.D. Cal. 1986), Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) (all holding that interim copying of original could constitute infringement, even if the final product was not substantially similar to original). However, other courts have rejected the notion of interim or intermediate copying, and compare only the completed work. See Walker v. Time-Life Films, 615 F.Supp. 430 (S.D.N.Y. 1985), aff'd, 784 F.2d 44 (2d Cir. 1986); See v. Durang, 711 F.2d 141 (9th Cir. 1983) (both holding that relevant question was whether the final works presented to the public were substantially similar, and not whether interim copying occurred); see also Joseph Beard, Casting Call At Forest Lawn: The Digital Resurrection of Deceased Entertainers, 41 J. COPYRIGHT SOC'Y 19, 32-34 (1993) (analyzing issue of interim copying).

FN56. See Warner Bros. v. American Broadcasting Co., 720 F.2d 231, 241 (2d Cir. 1983) ("A story has linear dimension; it begins, continues, and ends. If a defendant copies substantial portions of a plaintiff's sequence of events, he does not escape infringement by adding original episodes somewhere along the line. [In contrast,] [a] graphic or three-dimensional work is created to be perceived as an entirety. Significant dissimilarities between two works of this sort inevitably lessen the similarity that would otherwise exist between the total perceptions of the two works.").

FN57. NIMMER, supra note 46, s 13.03[B][1].

FN58. Id. s 13.03[A][1]; see Knitweaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996, 1003-04 (2d Cir. 1995); Ruolo v. Russ Berrie & Co., 886 F.2d 931, 939 (7th Cir. 1989); CSM Investors, Inc. v. Everest Development, Ltd., 840 F.Supp. 1304, 1311 (D. Minn. 1994).

FN59. Knitwaves, 71 F.3d at 1003-04; Ruolo, 886 F.2d at 939; CSM Investors, 840 F.Supp. at 1311; see NIMMER, supra note 46, s 13.03[A][1][c].

FN60. See PATRY, supra note 41, at 248-54; See also Burrow-Giles Lithographing, 111 U.S. at 57-58; Bleistein, 188 U.S. at 250.

FN61. Bleistein, 188 U.S. at 249; Caratzas v. Time Life, Inc., 1993 CCH Copyright L. Dec. P27,012 (S.D.N.Y. 1992).

FN62. 17 U.S.C. s 107.

FN63. Harper & Row, 471 U.S. at 566-68; see New Boston Television, Inc. v. ESPN, Inc., 215 U.S.P.Q. 755 (D. Mass. 1981) (use of videotaped highlights of sporting events on news program interfered with potential new market for sports footage).

FN64. See Iowa State Univ. v. Am. Broad. Co., 621 F.2d 57 (2d Cir. 1980) (use of excerpts of film footage interfered with potential new market for that footage and was not a fair use); Barbara Hoffman, The Legal Web and Virtual Gallery, N.Y.L.J., March 22, 1996, at 5 (discussing emerging markets for digital versions of fine art from museums); Bob Nandell, It's a Brave New Photo World, DES MOINES REGISTER, Nov. 27, 1994, at 4 (stating that digital-image photo banks for stock images are blossoming).

FN65. Mura v. CBS, Inc. 245 F.Supp. 587 (S.D.N.Y. 1965); Amsinck v. Columbia Pictures Indus., Inc., 862 F.Supp. 1044 (S.D.N.Y. 1994); Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171 (5th Cir. 1980).

FN66. Woods v. Universal City Studios, Inc., 920 F.Supp. 62, 65 (S.D.N.Y. 1996).

FN67. See Ringgold v. Black Entertainment Television, Inc., 40 U.S.P.Q.2d 1299 (S.D.N.Y. 1996).

FN68. Monster Communications Inc. v. Turner Broad. Sys. Inc., 40 U.S.P.Q.2d 1259, 1262 (S.D.N.Y. 1996): Anyone who has seen any of the great pieces of photojournalism ... must acknowledge that photographic images of actual people, places or events may be as creative and deserving of protection as purely fanciful creations. Nevertheless, history has its demands. There is a public interest in receiving information concerning the world in which we live. The more newsworthy the person or event depicted, the greater the concern that too narrow a view of the fair use defense will deprive the public of significant information. Moreover, only a finite number of photographers capture images of a given historical event. Hence without denying for a moment the creativity inherent in the film clips of actual events relating to the Zaire fight, the degree of protection that properly may be afforded to them must take into account that too narrow a view of the fair use defense could materially undermine the ability of other Ali biographers to tell, in motion picture or perhaps still photographic form, an important part of his story. But see, Los Angeles News Serv. v. KCAL-TV Channel 9, 42 U.S.P.Q.2d 1080 (9th Cir. 1997) (despite "extraordinary" significance of videotape footage of beating of motorist during Rodney King riots, reuse of that footage could not be held to be a fair use at the summary judgment stage).

FN69. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

FN70. Leibovitz v. Paramount Pictures Corp., 1996 WL 733015 (S.D.N.Y.).

FN71. Rogers v. Koons, 960 F.2d 301 (2d Cir.); United Features Syndicate, Inc. v. Koons, 817 F.Supp. 370 (S.D.N.Y. 1993).

FN72. See Screen Actors Guild ("SAG") Codified Basic Agreement of 1989 For Independent Producers P21; SAG Television Agreement of 1989 For Independent Producers P36.

FN73. As discussed infra text accompanying notes 75 to 79, some directors (and even some actors) have sufficient leverage in the bargaining process to receive the contractual right to control the creative content and alteration of their films. In addition, screenwriters often own separate copyrights in the screenplays that they create.

FN74. H. R. Rep. No. 514, 101st Cong, 2d Sess. 9 (1990), reprinted in 1990 U.S.C.A.A.N. 6915, 6919 ("VARA House Report").

FN75. See SAG Codified Basic Agreement of 1989 For Independent Producers s 21.A; SAG Television Agreement of 1989 For Independent Producers s 36(a).

FN76. See THOMAS D. SELZ, ET AL., ENTERTAINMENT LAW s 22.03 (2d Ed. 1996) (discussing these examples, most of which involved either edited versions of movies being shown on television or control over preparation of the "final cut" of a film).

FN77. See Directors Guild of America (DGA) 1993 Basic Feature Film Agreement s 7-1501; SELZ, supra note 76 s 22.04.

FN78. DGA Feature Film Agreement, supra note 77, ss 7-202, 7-506, 7-513.

FN79. See SELZ, supra note 76 s 22.06 (quoting producer Dino De Laurentiis as stating: "By contract I never give anyone artistic control, not even Bergman or Fellini.... But in practice I give Bergman and Fellini 100 percent artistic control. What's the point of making a film with them, or any other great director, if you don't leave them alone?").

FN80. Approximately 50% of the images used by Time and Newsweek are licensed from photographers or photographic agencies. See Sandra Utt, et al., How Time, Newsweek and U.S. News & World Report Photographically Covered the Fall of the Eastern Bloc, 7 S.W. MASS. COMM. J. 88, 96 (1992); Kuo-Jen Tsang, News Photographs in Time and Newsweek, 61 JOURNALISM Q. 578, 583 (1984). Although many fashion photographers retain ownership of the copyrights in their images, fashion models generally do not own any of the copyrights in their images.

FN81. See 1997 PHOTOGRAPHER'S MARKET, at 17-19 (setting out typical license fees for photographs for various uses); Michel Heron & David MacTavish, PRICING PHOTOGRAPHY: THE COMPLETE GUIDE TO ASSIGNMENTS AND STOCK PRICES (Allsworth Press); see e.g., Roy Export Co. v. Columbia Broad. Sys., Inc., 503 F.Supp. 1137 (S.D.N.Y. 1980), aff'd, 672 F.2d 1095 (2d Cir. 1982) (artist owned copyright in audiovisual work and granted commissioning party only a one-time use license, even though the work was created at the request and expense of the licensee).

FN82. See 1996 PHOTOGRAPHER'S MARKET, at 69; see e.g., Strauss v. Hearst Corp., 8 U.S.P.Q.2d 1832, 1838 (S.D.N.Y. 1988) (concluding that copyrights in magazine photographs were jointly owned by photographer and magazine after analyzing the circumstances surrounding the creation of photographs for a magazine article, and holding that magazine was therefore entitled to digitally alter images and reproduce them in a promotional insert).
FN83. 17 U.S.C. ss 101, 201(b).

FN84. 17 U.S.C. ss 101, 201(b). Courts have developed a variety of factors that must be reviewed in order to determine whether a particular relationship fits with the definition of a work for hire. See CCNV v. Reid, 490 U.S. 730, 751 (1989) (setting forth factors to consider in determining whether artist was an "employee"); Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 557 (2d Cir. 1995) (setting forth factors to consider in determining whether work is specially commissioned), cert. denied, 116 S.Ct. 567 (1995); Easter Seal Soc'y v. Playboy Enters., 815 F.2d 323, 325-28 (5th Cir. 1987) (discussing use of similar factors under the earlier 1909 Copyright Act), cert. denied, 485 U.S. 981 (1988).

FN85. 17 U.S.C. s 101 (definition of "works for hire").

FN86. 734 F.Supp. 644 (S.D.N.Y. 1990).

FN87. Id., at 650-51.

FN88. See Lumiere v. Robertson-Cole Dist. Corp., 280 F. 550, 553 (2d Cir. 1922) ("where a subject comes to a photographer and induces the creation of photographs, the right of copyright is in the sitter and it is not in the photographer").

FN89. Playboy v. Dumas, 53 F.3d at 554; see CCNV, 490 U.S. at 741.

FN90. See NIMMER, supra note 46, s 5.03[B][2][d] (citing Elbe v. Adkins, 812 F.Supp. 1157 (S.D. Ohio 1991); Cory v. Physical Culture Hotel, Inc., 14 F.Supp. 977 (W.D.N.Y. 1936), aff'd, 88 F.2d 411 (2d Cir. 1937)).

FN91. Considine v. Penguin, U.S.A., 24 U.S.P.Q.2d 1947 (S.D.N.Y. 1992) (publication of excerpts of book in Ladies Home Journal would not constitute copyright infringement where publisher breached condition of license that it would afford author the right to approve alterations to his work).

FN92. Geisel v. Poynter Prods., Inc., 295 F.Supp. 331, 345 (S.D.N.Y. 1968).

FN93. Id., at 345.

FN94. See infra text accompanying notes 154 through 231.

FN95. See Classic Film Museum, Inc. v. Warner Bros., Inc., 453 F.Supp. 852, 855-56 (D. Me. 1978) (discussing relationship between copyright in a film and copyrights in an underlying story, screenplay and musical score).

FN96. 17 U.S.C. s 202.

FN97. See Olan Mills, Inc. v. Eckerd Drug, 1988-89 CCH Copyright L. Rep. P 26,405 (N.D. Tex. 1988) and Olan Mills, Inc. v. Eckerd Drug, 1988-89 CCH Copyright L. Rep. P26,420 (N.D. Tex. 1989) (related cases holding that owners of prints of copyrighted photographic portraits did not own right to make other prints and enlargements of those photographs); Salinger v. Random House, 811 F.2d 90, 94-95 (2d Cir.) (recipient of a letter does not own the right to reproduce the copyrighted contents of letter), cert. denied, 484 U.S. 890 (1987).

FN98. RITCHIN supra note 8, at 111; see Hoffman, The Legal Web and the Virtual Gallery, N.Y.L.J. Mar. 22, 1996, at 5 (noting emerging market for digital versions of museum art works and discussing importance of enforcing "restrictions on the resolution of digital images made available on the internet"); Jane Austin, Altered States, DESIGN WEEK, March 3, 1995, at 16 (recommending that owners never offer high-resolution digitized photographs, since resolution of images will always be too low for adequate reproduction).

FN99. Under the 1909 Act, works were copyrightable for a total of 56 years (which was extended in 1988 to 75 years). Under the 1976 Act, works are copyrightable for the life of the author plus 50 years. 17 U.S.C. s 302.

FN100. Several 1988 amendments to the Copyright Act eliminated most of these formalities. Prior to the 1988 amendments, copyright could be lost by publishing a work without copyright notice, or by failing to register the work with the Copyright Office. 17 U.S.C. ss 401, 405, 408; see Int'l Film Exch., Ltd. v. Corinth Films, Inc., 1986 CCH Copyright L. Rep. P25,860 (S.D.N.Y. 1985) (movie The Bicycle Thief lost its copyright protection through failure to renew registration).

FN101. However, the copyright owned by the new artist extends only to the original elements added to the original work, and does not extend to the preexisting elements of the original work, which remain in the public domain. 17 U.S.C. s 103(b); see International Film Exchange, 1986 CCH Copyright L. Rep. P25,860 (even though The Bicycle Thief lost its copyright protection, movie distributor could obtain a copyright in new material that it added to the film, such as dubbing, translations into English or editing).

FN102. Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 102-03 (2d Cir. 1951) ("All that is needed to satisfy both the Constitution and the statute is that the 'author' contributed something more than a 'merely trivial' variation, something recognizably 'his own.' Originality in this context means little more than a prohibition of actual copying").

FN103. Dolori Fabrics, Inc. v. Limited, Inc., 662 F.Supp. 1347 (S.D.N.Y. 1987); Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982).

FN104. A series of cases involving fabric patterns indicate that "reverse cropping" or extending background patterns may be sufficiently creative to merit copyright protection. These cases held that redrawing, modifying and embellishing the size of a fabric design so that it fits on printing rollers or screens so that it can be repeated on the finished design is sufficiently original to merit copyright protection. JBJ Fabrics, Inc. v. India Garments, Inc., 1993 WL 330464 (S.D.N.Y. Aug. 24, 1993); Peter Pan Fabrics, Inc. v. Rosstex Fabrics, Inc., 733 F.Supp. 174 (S.D.N.Y. 1990); Kenbrooke Fabrics, Inc. v. Material Things, 223 U.S.P.Q. 1039 (S.D.N.Y. 1984); Soptra Fabrics Corp. v. Stafford Knitting Mills, Inc., 490 F.2d 1092 (2d Cir. 1974).

FN105. 37 C.F.R. s 202.20(c)(2)(ii); 53 Fed. Reg. 29,887 (Aug. 9, 1988); 52 Fed. Reg. 23,443 (June 22, 1987); see PATRY, supra note 41, at 335.

FN106. L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc); Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980).

FN107. PATRY, supra note 41, at 165; Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951).

FN108. See 17 U.S.C. s 101 (definition of "compilation"); John Gastineau, Note, Bent Fish: Issues of Ownership and Infringement in Digitally Processed Images, 67 IND. L.J. 95, 108-109 (1991).

FN109. 17 U.S.C. s 106A.

FN110. VARA House Report, supra note 74, at 5.

FN111. Id. at 7.

FN112. Id. at 9 ("The bill's scope should be limited to certain carefully defined types of works and artists."); id. at 11 ("We have gone to extreme lengths to very narrowly define the works of art that will be covered. This legislation covers only a very select group of artists.").

FN113. 17 U.S.C. s 101 (definition of "work of visual art"); VARA House Report, supra note 74, at 11. Motion picture directors attempted to obtain moral rights protection against colorization, but failed. See supra note 44.

FN114. 17 U.S.C. s 101 (definition of "work of visual art"); VARA House Report, supra note 74, at 11.

FN115. VARA House Report, supra note 74, at 11.

FN116. 17 U.S.C. s 101 (subsection (B) of definition of "work of visual art").; VARA House Report, supra note 74, at 11-12.

FN117. 17 U.S.C. s 106A(c)(3); VARA House Report, supra note 74, at 12, 17.

FN118. VARA House Report, supra note 74, at 17. Demonstrating its overriding concern with the economic aspects of intellectual property laws, Congress reasoned that the profitable and productive mass media industries should not be held liable for depicting, portraying, reproducing, or otherwise using valuable visual images.

FN119. 17 U.S.C. s 106A; VARA House Report, supra note 74, at 14. An artist need not demonstrate any preexisting standing in the artistic community to assert this right. VARA House Report, supra note 72, at 15.

FN120. VARA House Report, supra note 74, at 14.

FN121. Some applications of this standard in other Berne Convention member countries include: (1) French courts held that colorizing the movie The Asphalt Jungle injured the reputation of director John Huston; (2) A French case held that recombining fragments of images from a painting violated the artist's moral rights; (3) In another French case, an artist had painted designs on all sides of a refrigerator. The owner of the refrigerator planned to dismantle the refrigerator and sell off the individual panels as separate art works. The French courts held that such actions violated the right of integrity and the "indivisible artistic unit" of the refrigerator; (4) In Canada, a court restrained a shopping center from draping Christmas ribbon over the necks of 60 geese that were part of a sculpture that the center owned, even though the modification was temporary and reversible; (5) A French court found that the use of reproductions of works of Henry Rousseau in a department store window damaged the deceased artist's reputation; and, (6) In contrast, another court held that adding materials to sets and costumes that Dali had prepared for a ballet did not harm Dali's reputation. See Russell J. DaSilva, Droit Moral and the Amoral Copyright: A Comparison of Artists' Rights in France and the United States, 28 BULL. COPYRIGHT SOC'Y 1, 18, 31-33 (1980); FRANKLIN FELDMAN, ET AL., ART LAW: RIGHTS AND LIABILITIES OF CREATORS AND COLLECTORS, at 491 (1986 & 1993 Supp.).

FN122. VARA House Report, supra note 74, at 16-17.

FN123. Id. at 16-17.

FN124. Id. at 18.

FN125. New York, California, Maine, Connecticut, Louisiana, Massachusetts, New Jersey, Pennsylvania, Puerto Rico and Rhode Island have full-fledged moral right statutes, while Utah, New Mexico, Montana, South Dakota and Georgia have more limited statutes. FRANKLIN FELDMAN ET AL., ART LAW: RIGHTS AND LIABILITIES OF CREATORS AND COLLECTORS s 5.1.1 (Supp. 1993).

FN126. N.Y. ARTS & CULTURAL AFFAIRS LAW s 14.03; see FELDMAN, supra note 121, s 5.1.1; Damich, The New York Artists' Authorship Rights Act: A Comparative Critique, 84 COLUM. L. REV. 1733 (1984).

FN127. Cal. Civ. Code ss 987 & 989; see Feldman, supra note 121 ss 5.1.1, 5.4.1.

FN128. See FELDMAN, supra note 121, s 5.1 (1993 Supp.).

FN129. Massachusetts, for example, has a broad definition of protected works of art, covering "any original work of visual or graphic art of any media which shall include, but not limited to, any painting, print, drawing, sculpture, craft object, photograph, audio or video tape, film, hologram, or any combination thereof, of recognized quality." Mass. Gen. Laws Ann. ch. 231, s 85S; see Feldman, supra note 121, s 5.4 (discussing individual state statutes).

FN130. VARA House Report, supra note 74, at 21 (VARA "will not preempt State causes of action relating to works that are not covered by the law, such as audiovisual works, photographs produced for non-exhibition purposes, and works in which the copyright has been transferred before the effective date"). However, VARA's preemption provisions (like all preemption provisions) are confusing, and they have not yet been interpreted fully by the courts.

FN131. See Adolf Dietz, The Moral Right of the Author: Moral Rights and the Civil Law Countries, 19 COLUM.-VLA J.L. & ARTS 199 (1995); Gerald Dworkin, The Moral Right of the Author: Moral Rights and the Common Law Countries, 19 COLUM.-VLA J.L. & ARTS 229 (1995).

FN132. Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 78 (2d Cir. 1981); Paramount Pictures Corp. v. Video Broadcasting Systems, 724 F.Supp. 808, 814 (D. Kan. 1989); Allen v. Nat'l Video, Inc., 610 F.Supp. 612, 625 (S.D.N.Y. 1985); see FELDMAN, supra note 121, s 5.1.1 at 428 ("A statute adopted with an ostensibly different purpose might, in a proper fact situation, furnish an artist-plaintiff with a remedy comparable to that which might be provided by one of the elements of the moral right, in this case the right of integrity.").

FN133. 538 F.2d 14 (2d Cir. 1976).

FN134. It should be noted that Monty Python's original contract with the BBC explicitly stated that Monty Python retained the right to edit and approve of the BBC broadcasts of the episodes.

FN135. Gilliam, 538 F.2d at 25.

FN136. Prior to the development of s 43(a), some courts acknowledged that defamation might be used to find that falsely attributing an inferior version of an artist's work to the artist defamed the artist's reputation. See Carroll v. Paramount Pictures, Inc., 3 F.R.D. 95, 96 (S.D.N.Y. 1942) ("The asserted false imputation to plaintiff, a well-known producer, of the production of an inferior work that injures his position as a producer in the professional and theater world, is libelous per se"); Ben-Oliel v. Press Publ'g. Co., 167 N.E. 432, 434 (N.Y. 1929). However, more recent courts have backed away from using defamation law in this manner. See Edison v. Viva Int'l, Ltd., 421 N.Y.S.2d 203, 207 (1979).

FN137. Benson v. Paul Winley Record Sales Corp., 452 F.Supp. 516 (S.D.N.Y. 1978).

FN138. Id.

FN139. 364 N.E.2d 570 (Ill. App. 1977).

FN140. The Bonner court applied Ohio state law, rather than the federal Lanham Act. Most states have statutes or common law doctrines that parallel the broad unfair competition principles of s 43(a). See INTERNATIONAL TRADEMARK ASSOCIATION, STATE TRADEMARK AND UNFAIR COMPETITION LAW (1989) (state-by-state survey of unfair competition laws of each of the fifty states).

FN141. Bonner, 364 N.E.2d at 574.

FN142. See CBS Inc. v. Springboard Int'l Records, 429 F.Supp. 563 (S.D.N.Y. 1976) (issuing preliminary injunction regarding release of old recordings of R&B group Patti LaBelle and the Bluebelles); CBS, Inc. v. Gusto Records, Inc., 403 F.Supp. 447 (M.D. Tenn. 1974) (preliminary injunction issued regarding altered recordings of country music star Charlie Rich); National Bank of Commerce v. Shaklee, 503 F.Supp. 533, 540 (W.D. Tex. 1980); see also PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266 (2d Cir. 1987) (enjoining release of recordings on which Jimi Hendrix played as a session player); Yameta Co. v. Capitol Records, Inc., 279 F.Supp. 582 (S.D.N.Y. 1968) (temporary injunction issued; rev'd by 393 F.2d 91 (2d Cir. 1968)).

FN143. See REPORT OF THE REGISTER OF COPYRIGHTS ON TECHNOLOGICAL ALTERATIONS TO MOTION PICTURES AND OTHER AUDIOVISUAL WORKS, supra note 44, at 63-66 (discussing Congressional debates over movie colorization); see generally, Note, Artistic Integrity, Public Policy and Copyright: Colorization Reduced to Black and White, 50 OHIO ST. L.J. 1013 (1989); Note, The Colorization of Black and White Films, 63 NOTRE DAME L. REV. 309 (1988); Note, Moral Rights Protections in the Colorization of Black and White Motion Pictures, 16 HOFSTRA L. REV. 503 (1988).

FN144. Although courts have accepted this principle, they have been cautious in applying the principle to specific facts, particularly where the only changes were editing changes necessitated by fitting an uninterrupted feature-length film into a fixed block of television air time with commercial interruptions. See Stevens v. National Broad. Co., 148 U.S.P.Q. 755, 757-58 (Cal. Sup. Ct. 1966) (enjoining televised exhibition of a edited version of the film A Place in the Sun insofar as the edited version would "so alter, adversely affect or emasculate the artistic or pictorial quality of said motion picture so as to destroy or distort materially or substantially the mood, effect, or continuity of said motion picture as produced and directed by plaintiff"); Autry v. Republic Prods., Inc., 213 F.2d 667, 669 (9th Cir. 1954) (recognizing that "although [the studio and copyright owner] unquestionably have the right to cut and edit the motion pictures ... some such cutting and editing could result in emasculating the motion pictures so that they would no longer contain substantially the same motion and dynamic and dramatic qualities which it was the purpose of the artist's employment to produce," but ultimately finding that the extent of the changes did not warrant injunction); Preminger v. Columbia Pictures Corp., 267 N.Y.S.2d 594 (Sup. Ct. 1966) (refusing director Otto Preminger's attempt to enjoin editing of Anatomy of a Murder for television version, finding that contract permitted changes, but recognizing that if changes were not minor, relief might be necessary to prohibit "garbled version" of an artist's work), aff'd, 269 N.Y.S.2d 913 (1st Dep't), aff'd, 273 N.Y.S.2d 80 (1966); King v. Innovation Books, 976 F.2d 824 (2d Cir. 1992).

FN145. RITCHIN supra note 8, at 110.

FN146. Schatt v. Curtis Management Group, Inc., 764 F.Supp. 902, 913 (1991) (quoting Gilliam, 538 F.2d at 24).

FN147. See Gilliam, 538 F.2d at 26 (concurring opinion of Judge Gurfein cautions that s 43(a) should not be broadly construed as a general moral rights statute); MCCARTHY, TRADEMARKS ss 27.08[2][c][iii] & [2][d] (noting limitations of s 43(a) as a surrogate for a moral rights statute).

FN148. Paramount Pictures Corp. v. Video Broadcasting Systems, Inc., 724 F.Supp. 808, 819 (D. Kan. 1989); see also Considine v. Penguin, U.S.A., 24 U.S.P.Q.2d 1947 (S.D.N.Y. 1992) (changes made in excerpting sections of book were not the type of "flagrant" "mangling" at issue in Gilliam and Benson, and therefore were not unlawful); Lish v. Harper's Magazine, 148 F.R.D. 516 (S.D.N.Y. 1992) (excerpt of author's letters did not "depart so substantially from the original as to unfairly represent the original").

FN149. See supra note 144.

FN150. See REPORT OF THE REGISTER OF COPYRIGHTS ON TECHNOLOGICAL ALTERATIONS TO MOTION PICTURES AND OTHER AUDIOVISUAL WORKS, supra note 44; Warren Husband, Resurrecting Hollywood's Golden Age: Balancing the Rights of Film Owners, Artistic Authors and Consumers, 17 COLUM.-VLA J.L. & ARTS 327 (1993).

FN151. Bonner, 364 N.E.2d at 575.

FN152. The Ohio Players' contract with the label stated that: All master recordings made hereunder, as well as all performances embodied thereon and all phonograph records derived therefrom, together with any property rights therein, whether presently existing or hereafter created, will be the exclusive property of [the label] free of any claim whatsoever by Artist or by anyone deriving rights from Artist. Bonner, 364 N.E.2d at 575. Moreover, the Ohio Players had also agreed that the record company had the right to "couple" their performances with those of other artists, which the court held did not encompass the overdubbing of performances other than those rendered at plaintiffs' recording sessions; but see Preminger v. Columbia Pictures Corp., 267 N.Y.S.2d 594 (Sup. Ct. 1966) (rejecting director Otto Preminger's attempt to prevent television editing of Anatomy of a Murder on the grounds that the director contractually waived the right to control how the movie would be edited for television).

FN153. Granz v. Harris, 198 F.2d 585, 587-89 (2d Cir. 1952) (Frank, C.J., concurring) (emphasis added) (enjoining sale of album that deleted eight minutes of solos from the artist's work, which the court found "substantial" and disturbed the "whole musical effect" of the original, relying upon a contract theory) see also Chesler v. Avon Books, 352 N.Y.S.2d 552, 555-56 (Sup. Ct. 1973) ("it is clear that even after a transfer or assignment of an author's work, the author has a property right that it shall not be used for a purpose not intended or in a manner which does not fairly represent the creation of the author.... An author or artist is entitled to judicial protection where there is a sufficient demonstration of 'mutilation' or other serious alteration of the creator's work.").

FN154. The term "right of publicity" dates from Judge Jerome Frank's opinion in the famous Haelen case of 1953: We think that, in addition and independent of that right of privacy ... a man has a right in the publicity value of his photograph, i.e. the right to grant the exclusive privilege of publishing his picture, ... Haelen Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 869 (2d Cir. 1953). The Supreme Court has recognized the validity of such state law rights. See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

FN155. The precise scope of these rights vary from state to state. The Libel Defense Resource Center (LDRC) produces a comprehensive annual state-by-state summary of statutory and common law rights of publicity, and how those laws have been interpreted in each the case law of each state. See LDRC 1996 YEARBOOK (1996). Another good resource is McCarthy's two-volume treatise THE RIGHTS OF PUBLICITY AND PRIVACY (1987).

FN156. See e.g., Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (rights of publicity are not limited to uses in advertising, and extended to airing entirety of human cannonball act during evening news); Beverley v. Choices Women's Medical Center, Inc., 579 N.Y.S.2d 637 (1991) (use of photograph in calendar violated right of publicity).

FN157. MCCARTHY, RIGHTS OF PUBLICITY s 4.3[C]; RESTATEMENT (THIRD) OF UNFAIR COMPETITION s 46 comment d.

FN158. See Bi-Rite Enters., Inc. v. Bruce Miner Co., 757 F.2d 440, 446 (1st Cir. 1985); Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 504 (1911), aff'g 193 N.Y. 233, 8 N.E. 1097 (1908); Price v. Hal Roach Studios, 400 F.Supp. 836, 842 (S.D.N.Y. 1975); National Bank of Commerce v. Shaklee Corp., 503 F.Supp. 533, 540 (W.D. Tex. 1980); RESTATEMENT (THIRD) OF UNFAIR COMPETITION s 46 comment I; MCCARTHY, RIGHTS OF PUBLICITY ss 11.14[B] & [C].

FN159. Grant v. Esquire, Inc., 367 F.Supp. 876 (S.D.N.Y. 1973).

FN160. Id. at 878-81.

FN161. Id. at 880; see also, Supermodel Sues French Extremists Over Posters, THE TORONTO STAR (May 10, 1996) at A5 (fashion model Linda Evangelista obtained preliminary injunction and money damages in French court in lawsuit brought against a far-right wing French political party who placed a photograph of Evangelista's face on Joan of Arc's body as part of a political poster).

FN162. However, if an individual's image is altered so extensively that the individual is no longer recognizable, their right of publicity is not implicated. See, Pesina v. Midway Mfg. Co., 948 F.Supp. 40 (N.D. Ill. 1996) (martial arts expert whose movements and image were used to create a character in a video game failed in a right of publicity claim because video game designers had altered his image so extensively that he was no longer recognizable).

FN163. Coke and Pepsi obtained right of publicity licenses from the estates of these individuals, even though they already had obtained separate copyright licenses from the owners of the copyrights in the footage.

FN164. Even though such rights exist as a matter of law in most states, the current contracts of most film and television actors further specify that, by operation of contract law, the images of those actors may not be used other than for the particular movie or television show for which the actor was hired. See infra text accompanying notes 173-74. However, the content of the individual contracts of entertainers varies enormously, and many contracts have been held to grant the copyright owner the right to exploit the likeness of the entertainers captured on film, and that rights of publicity were assigned or waived by contract. See, Muller v. Walt Disney Prods., 871 F.Supp. 678 (S.D.N.Y. 1994) (conductor appearing in Fantasia had contractually given away right to control future exploitation of his performance); Brown v. Twentieth Century Fox Film Corp., 799 F.Supp. 166 (D.D.C. 1992) (James Brown's 1964 contract with producer of television show gave producer and copyright holder of 1960s television show the right to sell footage of Brown's original performance to movie producers who incorporated footage into a 1991 movie); Rooney v. Columbia Pictures Indus. Inc., 538 F.Supp. 211 (S.D.N.Y. 1982) (Mickey Rooney's contracts during 1930s, 1940s and 1950s assigned or waived his rights of publicity); Major League Baseball Players v. Dad's Kid Corp., 806 F.Supp. 458 (S.D.N.Y. 1992), dismissed on procedural grounds, In Re Dad's Kids Corp., 33 U.S.P.Q.2d 1940 (C.D. Cal. 1994) (reuse and repackaging of photographs of baseball players did not violate the players' rights of publicity because players' contracts waived right to control reuse).

FN165. See MCCARTHY, TRADEMARKS AND UNFAIR COMPETITION, s 28.01[3] (discussing acceptance of rights of publicity as a property right, despite the historical origin of rights of publicity as a privacy-based right).

FN166. Sharman v. C. Schmidt & Sons, Inc., 216 F.Supp. 401, 404 (E.D. Pa. 1963); see MCCARTHY, RIGHTS OF PUBLICITY s 10.5[B].

FN167. Sharman, 216 F.Supp. at 405-08.

FN168. Morgan v. Hustler Magazine, Inc., 653 F.Supp. 711, 718-19 (N.D. Ohio 1987).

FN169. The court's opinion states: It is recognized that young and impressionable people who want to go into modeling are often eager, ambitious and anxious and will sign a release without any thought to the future. At a subsequent period of time, there are often changed circumstances. Thus when the model's pictures are used, they may not be happy about how their pictures are used. Twenty-twenty hindsight comes into play. The obvious answer is either do not sign a release or, if you do sign a release, make sure that you add or delete any language that you deem appropriate or inappropriate before you sign the release. Morgan, 653 F.Supp. at 718.

FN170. See Brinkley v. Casablancas, 438 N.Y.S.2d 1004 (1st Dep't 1981) (model's oral consent insufficient to permit commercial sale of posters); Shamsky v. Garan, Inc., 632 N.Y.S.2d 930 (Sup. Ct. 1995) (standard contracts of players on 1969 New York Mets did not permit Mets to use team photograph on t-shirts); MCCARTHY, RIGHTS OF PUBLICITY s 10.5[C] (citing, Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1138-39 (7th Cir. 1985) (model's consent to use her image in Playboy magazine did not permit use of that image in Hustler magazine), Faber v. Condecor, Inc., 477 A.2d 1289 (N.J. App. 1984) (consent to use image in company publication does not permit other company to use image to promote picture frames); Kimbrough v. Coca-Cola, 521 S.W.2d 719, 723 (Tex. App. 1975) (consent by college athlete for college to use his image in promotional materials did not permit private company to use that image in commercial advertising); Continental Optical Co. v. Reed, 86 N.E.2d 306, 309 (Ind. 1949) (soldier's consent to use his image in military publications did not permit private company from using image in commercial advertising)).

FN171. 367 F.Supp. at 880 n.2.

FN172. Sinclair v. Postal Telegraph & Cable Co., 72 N.Y.S.2d 841, 842 (N.Y. Co. 1935). Similarly, in Russell v. Marboro Books, 183 N.Y.S.2d 8 (Sup. Ct. N.Y. Co. 1959), the court held that a photograph of a fashion model that was airbrushed to make the model appear to be a call girl reading a racy book constituted defamation, even though the model had signed an expansive release, waiving all rights to approve of the future use of the photographs. The court held that the release only covered the images captured at the photo shoot, and did not extend to altered images: [I]f the picture were altered sufficiently in situation, emphasis, background or context, I should think that it would no longer be the same portrait, but a different one. And as to that changed picture, I would hold that the original written consent would not apply and that liability would accrue where the content of the picture has been so changed that it is substantially unlike the original. Russell, 183 N.Y.S.2d at 27.

FN173. See supra text accompanying note 73.

FN174. See e.g., Brinkley v. Casablancas, 438 N.Y.S.2d 1004 (1st Dep't 1981) (Christie Brinkley retained right to reject or approve of all uses of photographs of her taken as part of television special, and was therefore able to prevent sale of posters where defendants failed to obtain written release, even though she consented to use of the same images in a television special and on advertisements for that special).

FN175. See Stephano v. News Group Publications, Inc., 485 N.Y.S.2d 220, 225 (1984) ("Best Bets" section of New York magazine fell within newsworthiness exception); Welch v. Group W Productions, Inc. 525 N.Y.S.2d 466, 468 (Sup. Ct. 1987) (television show featuring "TV's Greatest Commercials" fell within newsworthiness exception); Dora v. Frontline Video Inc., 26 U.S.P.Q.2d 1705 (Cal. 1993); New Kids on the Block v. News America Publ'g, Inc., 971 F.2d 302 (9th Cir. 1992) (USA Today poll of "Who's your favorite New Kid on the Block" (a popular teen music group at the time) and accompanying for-profit 1- 900 telephone number was newsworthy). In addition to the newsworthiness exception, courts have also begun to recognize that legitimate parodies may not violate a person's right of publicity. See Cardtoons v. Major League Baseball Players Ass'n, 39 U.S.P.Q.2d 1865 (10th Cir. 1996); Geary v. Goldstein, 1996 WL 447776 (S.D.N.Y. 1996).

FN176. See Leverton v. Curtis Publ'g Co., 192 F.2d 974 (3d Cir. 1951); Beverley, 579 N.Y.S.2d 637 (while use of prominent doctor's photograph in news article on medical convention was permissible, later use of photograph in promotional calendar violated doctor's right of publicity and privacy); but see Gaeta v. Home Box Office, 645 N.Y.S.2d 707 (N.Y. Co. 1996) (once-newsworthy photographs may be used subsequently to illustrate related topics without violating rights of publicity).

FN177. Mendonsa v. Time, Inc., 678 F.Supp. 967, 968 (D.R.I. 1988).

FN178. Id., 678 F.Supp. at 971-72; see also Redmond v. Columbia Pictures Corp., 14 N.E.2d 636 (N.Y. 1938) (film of golfer taken for newsreel could not later be edited into unnewsworthy movies).

FN179. However, if the purpose is a legitimate parody, even if for a commercial purpose, then rights of publicity may not be violated. See supra note 69.

FN180. See Time, Inc. v. Hill, 385 U.S. 374 (1967); Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974).

FN181. Zacchini, 433 U.S. at 562; Shaklee, 503 F.Supp. at 539-40.

FN182. Zacchini, 433 U.S. at 562.

FN183. New York Times, Inc. v. Sullivan, 376 U.S. 254 (1964).

FN184. See Brown v. Hearst Corp., 54 F.3d 21 (1st Cir. 1995).

FN185. Zacchini, 433 U.S. at 562.

FN186. Organization For a Better Austin v. Keefe, 402 U.S. 415 (1971).
FN187. See Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983).

FN188. Cantrell v. Forest City Publ'g Co., 419 U.S. 145 (1974).

FN189. ROBERT D. SACK, ET AL., LIBEL, SLANDER AND RELATED PROBLEMS s 10.1.2 (2d ed. 1994); see Bose Corp. v. Consumers Union, 466 U.S. 485 (1984); Matthews v. Wozencraft, 15 F.3d 432, 440 (5th Cir. 1994); Pring v. Penthouse Int'l, Ltd., 695 F.2d 438 (10th Cir. 1982).

FN190. In addition to the example of the Time magazine cover of O.J. Simpson mentioned supra text accompanying note 2, a Newsweek cover story combined a photograph of Tom Cruise with a separate photograph of Dustin Hoffman to make it appear that the two actors were casually enjoying a joke between them, in order to support the story's premise that a close friendship between the two actors caused the success of the film Rain Man. NEWSWEEK, Jan. 16, 1989. In addition, Newsday, a respected New York daily newspaper, combined separate photographs of Tonya Harding and Nancy Kerrigan to falsely make it appear that the two skaters were tensely practicing together at the Olympics, and presented this image to its readers as an exclusive scoop. See Bill Mahon, All the News That's Fit to Manipulate, EDITOR AND PUBLISHER MAGAZINE, March 2, 1996, at 48 (discussing these and other examples of altered news photos); see also Dale Ireland, Let the Eye Beware: Digital Manipulation of Photographic Images, SKY & TELESCOPE, June 1995, at 6 (noting that all major news organizations distributed photographs of the planet Jupiter made by the Voyager spacecraft and Hubble Space Telescope that computers dramatically changed in contrast and color composition, causing a large segment of the public to believe that Jupiter actually looks like that).

FN191. See supra text accompanying notes 12 to 35.

FN192. The general elements of a claim for defamation are (i) a false and defamatory statement concerning another; (ii) an unprivileged publication to a third party; (iii) fault amounting at least to negligence on the part of the publisher; and (iv) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. RESTATEMENT (SECOND) OF TORTS s 558; SACK, supra note 189 s 2.4, at 63; see LRDC 1996 YEARBOOK, supra note 155 (an annual state-by-state review of the current state of defamation law of each state).

FN193. RESTATEMENT (SECOND) OF TORTS s 559; PROSSER & KEETON ON TORTS s 111 at 773 (5th Ed. 1984).

FN194. SACK, supra note 189 s 2.4.1, at 69.

FN195. Immuno AG v. Moor-Jankowski, 566 N.Y.S.2d 906 (1991). However, if an opinion implies that it is based upon facts, and those facts are false, the statement may be defamatory. See Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
FN196. See RESTATEMENT (SECOND) OF TORTS s 652 (1977); Fellows v. National Enquirer, Inc., 721 P.2d 97 (Cal. 1986). However, some states have declined to accept false light claims. See Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994).

FN197. RESTATEMENT (SECOND) OF TORTS s 652E(a) (1977).

FN198. Time, Inc. v. Hill, 385 U.S. 374, 385 n.9 (1967); Godbehere v. Phoenix Newspapers Inc., 783 P.2d 781 (Ariz. 1989); SACK, supra note 189 s 10.3.

FN199. SACK, supra note 189 s 10.3.1; see Pring v. Penthouse Int'l, Ltd., 695 F.2d 438 (10th Cir. 1982).

FN200. See supra text accompanying notes 180 to 187.

FN201. See e.g., Cal. Civ. Code s 45 ("Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation") (emphasis added); Ga. Code Ann. s 4-2-805 (same); N.D. Cen. Code s 14-02-03 (same).

FN202. See supra text accompanying notes 12 to 35.

FN203. Burton v. Crowell Publ'g Co., 82 F.2d 154 (2d Cir. 1936) (photograph of athlete in Camel cigarette advertisement's created optical illusion that the athlete was flashing his naked genitalia to the camera, creating a "preposterously ridiculous spectacle" that "distorted his appearance, even though no retouching occurred, and exposing this distorted image to the public" and defaming athlete); see Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 74 (W. Va. 1984) ("although libel is generally perpetrated by written communication, it also includes defamation through the publication of pictures or photographs"); Wilhoit v. WCSC, 13 Media L. Rep. 2158 (S.C. App. 1987) (same quote).

FN204. 476 F.Supp. 1134 (W.D. Pa. 1979).

FN205. 183 N.Y.S.2d 8 (Sup. Ct. N.Y. Co. 1959).

FN206. Id. at 30. The court reached this conclusion even though the model had signed an expansive release, waiving all rights to approve of the future use of the photographs. Marboro was decided before the right of publicity doctrine had developed fully, which would now provide an alternative ground for recovery. See supra note 172. Similar conduct could also constitute intentional infliction of emotional distress. See Bowman v. Heller, 1993 WL 761159 (Mass. Super. Ct.) (cutting and pasting employee's head on photograph of naked body and circulating it in the workplace constituted intentional infliction of emotional distress).
FN207. 792 F.Supp 1195 (D. Ore. 1991), aff'd 1993 WL 280400 (9th Cir. 1993); see also Allen v. Bethlehem Steel Corp., 547 A.2d 1105 (Md. Ct. Spec. App. 1988) (altering film of employee and use of that film in disciplinary proceedings stated a cause of action for defamation).

FN208. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 518-19 (1991) (quoting Time, Inc. v. Pape, 401 U.S. 279, 285 (1971)).

FN209. See RITCHIN supra note 8, at 100-03.

FN210. See supra text accompanying notes 12-16.

FN211. RITCHIN supra note 8, at 144; see New Picture Technologies Push Seeing Still Further From Believing, N.Y. TIMES at 42 (July 3, 1989) ("Our photographs are part of the journalistic content of our newspaper. They say something to the readers, and we want to maintain that credibility").

FN212. RITCHIN supra note 8, at 63.

FN213. Id. at 113, 142, 144.

FN214. Id. at 144-46.

FN215. See Masson, 501 U.S. at 512-20 (noting importance of context to the public when determining whether or not materials purport to depict reality).

FN216. Grant, 367 F.Supp. at 878 (discussed supra text accompanying notes 159-161, 171).

FN217. See supra notes 2 and 190.

FN218. See Desnick v. American Broadcasting Co., 44 F.3d 1345, 1355 (7th Cir. 1995) ("Today's 'tabloid' style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market, constitutes -- although it is often shrill, one-sided, and offensive, and sometimes defamatory -- an important part of that market") (Posner, J.).

FN219. Regan v. Sullivan, 557 F.2d 300, 309 (2d Cir. 1977); Wilhoit v. WCSC, 358 S.E.2d 397 (S.C. Ct. App. 1987) (using image of innocent person in news broadcast of embezzler's trial was libelous).

FN220. See People's Bank & Trust Co. v. Globe Int'l, 978 F.2d 1065 (8th Cir. 1992), cert. denied, 114 S.Ct. 343 (1993) (use of woman's picture to illustrate a fictional story about a pregnant 101-year old woman); Prystash v. Best Medium Publ'g Co., 254 A.2d 872 (Conn. 1969) (use of woman's picture to illustrate story regarding another woman's child neglect); Raible v. Newsweek, Inc., 341 F.Supp. 804 (W.D. Pa. 1972); Braun v. Flynt, 726 F.2d 245 (5th Cir. 1984); Parnell v. Booth Newspapers, Inc., 572 F.Supp. 909, 921-22 (W.D. Mich. 1983) (placing a photograph of a woman in an article on prostitution can constitute false light invasion of privacy).

FN221. See Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985).

FN222. Masson, 501 U.S. at 506.

FN223. Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993); see Currier v. Western Newspapers, Inc., 855 P.2d 1351, 1354 (Ariz. 1993) ("a technically false statement may nonetheless be considered substantially true if, viewed through the eyes of the average reader, it differs from the truth only in insignificant details").

FN224. RESTATEMENT (SECOND) OF TORTS s 652E comment c.

FN225. See supra notes 10-11.

FN226. Dale E. Ireland, Let the Eye Beware, SKY & TELESCOPE, June 1996 at 6.

FN227. Mark Potts, Regarding Digitally Altered Photos, WASHINGTON POST, March 27, 1995, at F13.

FN228. Russell Rohde, Tune-Up or Major Overhaul? Manipulation of Photographic Images, PHOTOGRAPHIC SOC'Y OF AMERICA JOURNAL, Dec. 1995, at 8.

FN229. SACK, supra note 189 s 2.4.6; see also, MCCARTHY, TRADEMARKS AND UNFAIR COMPETITON, s 23.51 (discussing cases involving consumer confusion under the Lanham Act that have held consistently that disclaimers are not an effective way to prevent consumers from being confused).