Intellectual Property Law

Kristin Davis?s Future (and Now Current) Reputation

By Deven Desai

Some may remember the actress Kristin Davis as the good girl from Sex and the City. Well good compared to the characters around her. The film based on the show is due to be released on May 30. And just in time pictures of someone naked and a sex video that are allegedly of Ms. Davis have surfaced on the Internet. A quick search of Google News shows that 86 (I am sure the number will increase) news outlets have covered the story. The range of coverage is broad: international papers (U.K., New Zealand, Canada), domestic paper?s web sites, and online venues all are in the game. Some show a cropped version of one of the pictures that suggest the person is engaging in shall we say a sex act. Others such as MSNBC and E!Online use pictures of Ms. Davis where she is in an evening dress or smiling.

Ms. Davis and her representatives have denied that the material, allegedly taken by an ex-boyfriend in 1992, is real. Some of the gossip sites claim that the pictures are obviously altered. Will any of these points matter?

Put differently, is this one about reputation or attention or both? I suggest both. For even though MSNBC tries to take the high ground, the page has links to ?More from Access Hollywood.? Those links are for video for the upcoming film and photo gallery for the show. So yes, Ms. Davis? reputation is affected. But the attention may help her movie do well. None of which supports the idea that it is OK to circulate the photos. Rather it goes to the way that almost anything that draws attention may generate value. So one should not be surprised that claims for reputation and attribution rights will rise, as the attention economy progresses. My paper, Property, Persona, and Preservation looks at the Attention Economy as does my next article Property, Persona, Permission which is out to law reviews now.

In short with information coming at us from many directions, attention is the scarce resource. Attribution and reputation relate to attention for individuals will want credit, and they will want control over how a work is used lest such use harm their reputations.

For those interested in further reading on the idea, Richard Lanham?s Economics of Attention is worth the read. In addition, Greg Lastowka, Digital Attribution: Copyright and the Right To Credit, 87 B.U. L. REV. 41 (2007), Julie Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN. L. REV. 1373 (2000); Wendy Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 VA. L. REV. 149 (1992), and Margaret Jane Radin, Property Evolving in Cyberspace, 15 J.L. & Com. 509 (1996) all have seeds of this idea from different angles. Last Frank Pasquale?s Copyright in an Era of Information Overload: Toward the Privileging of Categorizers, 60 VAND. L. REV. 135 (2007) looks at how information increases search costs which in my view is a matter of attention as well.

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Full post as published by Madisonian.net on March 19, 2008 (boomark / email).