[Leica] photographer sued

[bcaldwell51 at earthlink.net (Bryan Caldwell)]

I hope all will forgive my longtime absence from the LUG - actually, more 
silence than absence, but as a lawyer and law professor in California I 
might be able to shed a little light here. Keep in mind that the U.S., like 
Great Britain, is a common law country - not everything is statutory - so 
what seem like simple questions often have very indefinite and complex  
answers. Civil liability can be imposed by statute, but it also can arise 
through the common law history of court decisions. And, even if imposed by 
statute, the statute in question is subject to constitutional challenge. 
These types of cases have often ventured into First Amendment issues of both 
freedom of speech and freedom of the press. Also, the case in question is in 
New York and this type of liability (assuming we're not venturing into 
copyright issues) could be drastically different from state to state. But, 
it wouldn't surprise me if California and New York had very similar law in 
this regard. 

I can only speak to California law. In the year following the death of 
Princess Diana, the California Legislature enacted California Civil Code 
section 1708.8 (the current version went into effect two years ago), which, 
so far, has been upheld by the California courts. Keep in mind that 
California is a hotbed of Paparazzi activity. 1708.8 has two relevant 
subsections which are interrelated . Pay very close attention to the exact 
language:

(a) A person is liable for physical invasion of privacy when the defendant 
knowingly enters onto the land of another person without permission or 
otherwise committed a trespass without permission or otherwise committed a 
trespass in order to physically invade the privacy of the plaintiff with the 
intent to capture any type of visual image, sound recording, or other 
physical impression of the plaintiff engaging in a personal or familial 
activity and the physical invasion occurs in a manner that is offensive to a 
reasonable person.

(b) A person is liable for constructive invasion of privacy when the 
defendant attempts to capture, in a manner that is offensive to a reasonable 
person, any type of visual image, sound recording, or other physical 
impression of the plaintiff engaging in a personal or familial activity 
under circumstances in which the plaintiff had a reasonable expectation of 
privacy, through the use of a visual or audio enhancing device, regardless 
of whether there is a physical trespass, if this image could not have been 
achieved without a trespass unless the visual or auditory enhancing device 
was used.

The meaning of the "vague" terms, "reasonable person, " "offensive," 
"reasonable expectation of privacy," etc., with regard to a particular set 
of facts, would likely be decided by a jury.

So, the end result is that a picture of a protected activity taken with a 
telephoto lens (a "visual enhancing device") while not on the plaintiff's 
property, could still lead to liability if the picture could not have been 
taken without the telephoto lens without committing a physical trespass. For 
those who think this is all semantics, try writing a statute that takes into 
account all foreseeable possibilities and technologies. It's not easy and 
the result is rarely simple.

The other significant factor about section 1708.8 is that it can result in 
treble damages, a civil fine of $5,000-50,000, punitive damages (when done 
commercially) and disgorgement (to the plaintiff) of any resulting profits 
from sale of the images.

But, having said all that, it still would appear to me that, under the right 
circumstances, this statute might be very susceptible to challenge as 
violative of the First Amendment. For some time in the U.S., invasion of 
privacy actions have been on the wane in favor of freedom of speech and 
freedom of the press.


Sorry to go on so long,

Bryan


On May 26, 2013, at 2:51 PM, George Lottermoser <imagist3 at mac.com> wrote:

> 
> On May 26, 2013, at 4:08 PM, Bill Pearce wrote:
> 
>> this could result in new case law that restricts all our options.
> 
> yup.
> stepping up to and over a line
> is pretty much where every "law" has come from.
> 
> Regards,
> George Lottermoser 
> george at imagist.com
> http://www.imagist.com
> http://www.imagist.com/blog
> http://www.linkedin.com/in/imagist
> 
> 
> 
> 
> 
> 
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