[Leica] photographer sued

[images at comporium.net (Tina Manley)]

That is certainly a very good definition of the law!  As I expected, it is
the telephoto lens and the expectation of privacy that are crucial to
determining if the photos are invasion of privacy.  I think they are!
 Besides, they are not that interesting - a violation of artistic privilege
;-)  He seems to have a good publicist which is the most important element
of being successful these days!

Tina


On Sun, May 26, 2013 at 7:10 PM, Bryan Caldwell
<bcaldwell51 at earthlink.net>wrote:

> 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
> >
> >
> >
> >
> >
> >
> > _______________________________________________
> > Leica Users Group.
> > See http://leica-users.org/mailman/listinfo/lug for more information
>
>
> _______________________________________________
> Leica Users Group.
> See http://leica-users.org/mailman/listinfo/lug for more information
>
>


-- 
Tina Manley, ASMP
www.tinamanley.com