Appellate Law

CA1: Patry brings the First circuit into Spitzergate

By S. COTUS

Even though I think it is high time we leave Elliot Spitzer alone, William Patry explains that some nude photos can be matter of public concern based on the First Circuit?s decision in Nunez v. Caribbean International News Corp. 235 F.3d 18 (1st Cir. 2000).  As the logic goes, circulated ?erotic? photos can fall under fair use (thereby defeating a claim of infringement by the photographer ? not the model) if they are circulated to explain a live controversy such as whether a ?contestant? representing a state somehow did something too sexy, and there is no other way to explain how sexy that thing is other than with the pictures.  Or, as the First Circuit said, "Puerto Ricans were generally concerned about the qualifications of Giraud for Miss Puerto Rico Universe, as is demonstrated by the several television shows discussing the photographs."  Allow me to illustrate Patry?s argument in the form of a zany comedy skit.

Jane: I am a proud resident of Puerto Rico, I expect all selectees of a beauty pageant representing the great non-state of Puerto Rico to be of positive moral character, and exemplified by appearing sexy, but never insinuating that they would reveal certain parts of their body.

(read on to see how this exciting skit turns out)

Bob: Well, I guess I agree with you.  High moral character in a model is almost as important to me as keeping Iraq under American control in order to bring democracy to the middle east and "Staying the Course."

Jane: Well, did you see what the contestant from the non-state of Puerto Rico did?

Bob: No.  I sure hope it wasn?t too sexy.  (Did I mention that we accomplished our mission in Iraq?).  The very notion of objectified and commodified ladies taking off their clothes in front of a camera makes me sick.  Sick!  Just like the people that want to cut and run in Iraq. 

Jane: I guess I would have to show you the pictures to let you know how sexy these pictures were.  Reasonable people may differ as to exactly how sexy they were.  At a minimum, they show thorax, and the image above is copyright Sam Gon III.

Bob: But what about the photographer?s copyright?  This seems to conflict with our ability to discuss politics, in that I can't work "Cut and Run" into every sentence.

Jane: Because this is politics, I can show you the pictures.   However, we must be careful to use the pictures only for political purposes, in order to fall within the doctrine of fair use and its codification in the copyright act.

(Jane shows the pictures to Bob.)

Bob: After careful consideration, we conclude that this model has the values and moral character necessary to represent the non-state of Puerto Rico in the upcoming competition against the Swedish Bikini Team.

Jane: Okay, give them back.

Two caveats: 

• I really don?t understand why there is anything wrong with beauty pageant contestants posting in a scantily clad manner, but I guess that is a topic for another day.
• I don?t know much about intellectual property.  I think the whole field is silly and boring.

Full post as published by Appellate Law and Practice on March 17, 2008 (boomark / email).