An interesting intellectual property angle has emerged in connection with the Governor Spitzer story -- the use by news organizations of photos of Ashley Dupre (aka"Kristen") without permission. See story here. As an initial matter, Rebecca Tushnet points out that, since presumably she didn't take the pictures of herself, Dupre may not own the copyright in them, unless "by transfer" from whoever did take them. Putting aside the ownership issues, Bill Patry believes the use of the photos "has an obvious claim to fair use" under Nuñez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000). Tushnet, however, thinks the news organizations here "might have a harder fair use case than in Nuñez": "In Núñez, whether the subject of the photos ought to have posed for them was the focus of the news story; Dupre's photos are not the newsworthy event themselves, but rather are used to show people what Spitzer was buying." Nonetheless, she agrees "their relation to newsworthy events, and the generally limited market for MySpace photos, might well justify a fair use finding."
Tushnet also adds that "Dupre's potential publicity rights, which [her] lawyer's quotes seem to focus on, are stronger in some ways, but much weaker in others. Specifically, news reporting use of her identity will not violate her publicity rights no matter how much her cleavage is used to sell papers."
More here from Photo District News Online.
UPDATE: Sergio Muñoz Sarmiento agrees the fair use case is strong, but, just in case he runs into any trouble for publishing one of the photos, has identified just the right counsel to represent him.
And Kunal Bhatheja has more on the publicity rights angle: "As long as a picture is in the context of something 'newsworthy' it withstands a claim under [the New York publicity rights statute] – even if it is placed or used in a manner designed to sell the publication."
