The tenth anniversary of Princess Diana’s death once again stirs questions regarding paparazzi and the right of publicity for celebrities.  Many magazines are in the business of exploiting the personal lives of celebrities, publishing photos and stories about them in every walk of life.  Tabloid magazines make millions of dollars each year from magazine sales fueled by images of big name celebrities on their covers.

The right of publicity arose out of the case Haelan Laboratories v. Topps Chewing Gum, Inc., where two chewing gum companies went to court over exclusive contracts to use baseball players’ likenesses to sell their gum. [1]  The court struck down the idea that a celebrity only has a right of privacy interest in their own images and decided that celebrities have a property interest in their images since they have a “pecuniary worth.” [2]  In this manner, courts recognized that celebrity images are a commodity that can be bought and sold in order to make money. 

Paparazzi has been able to capitalize upon this worth by selling photographs of celebrities to tabloid magazines.  Magazines offer high sums of money for photos of celebrities in order to help their sales.  It has been claimed that $500,000 has been offered for photos of Brad Pitt and Angelina Jolie in the past. [3]  Paparazzi try to get the most exclusive photos of celebrities in order to make the most money off of their photos.  With an estimated 150 paparazzi in Los Angeles alone [4], this is difficult and leads them to take extreme measures to get a photo.

Ten years ago paparazzi followed Princess Diana in Paris as she was on a date with Dodi Fayed.  In a high speed chase her car crashed, killing Princess Diana, Dodi Fayed and the driver, Henri Paul. [5]  In 2005 Lindsay Lohan crashed her car into a van after being chased by paparazzi in West Hollywood, causing injury to Lohan, her passenger and the driver of the van. [6]  Last year, Brad Pitt and Angelina Jolie required security to surround their rickshaw as they traveled through India ast year. [7]  All of these are just a few examples of the impact paparazzi have on the lives and safety of celebrities.  When paparazzi is in pursuit of a valuable photo, they are likely to create dangerous situations for celebrities and bystanders.  Sometimes, as in the case with Princess Diana, the consequences are fatal.

There is a need to enact a new law to protect celebrities from the paparazzi because the current laws are inadequate.  The right of publicity protects a celebrity’s interest in their own image while the right to privacy protects any individual’s personal interest in privacy. [8]  The right of privacy for a celebrity is somewhat more limited than it is for the average person.  [9]  A celebrity has put themselves in the limelight and therefore is guaranteed a lesser protection of their privacy. [10] Rights of publicity are based on common law and state statutes since there is no federal law concerning this area. [11]

Currently the only federal laws that come close to offering a right of publicity are the Lanham Act and the Copyright Act. [12]  Neither act, however, fully helps celebrities curb the unwanted attention from the paparazzi.  State laws against trespass, stalking and harassment, while offering minor protection, do not protect celebrities from paparazzi when out in public spaces. [13]

Some states, like California, have tried to enact legislation to disincentive the press from paying paparazzi large sums of money for photos in order to curb invasion upon celebrities. [14]  It is unclear, however, that the Supreme Court would determine this sort of legislation to be constitutional under the First Amendment. [15]  The First Amendment right to freedom of the press makes it difficult to put any sort of limitation on only the press.  As a result, it is likely that state legislation that only affects the press’ ability to pay for photographs of celebrities would be struck down. 

In Galella v. Onassis, the court found that an injunction could stop paparazzi from following Jackie Onassis as long as it did not infringe on the ability of other press to cover Onassis. [16]  While the court was willing to offer an injunction, it is not clear that they would be willing to make such blanket rulings, especially if such a ruling might infringe on the press’ ability to cover celebrities.

            The paparazzi offers a threat to the safety of the lives of celebrities.  Paparazzi are often motivated by large sums being offered by tabloid and special interest magazines for photographs of celebrities.  While many magazines offer larger sums for exclusive photo shoots, many more will still pay a large amount for a photograph of a celebrity in public.  In order to get these photographs, paparazzi often to go extreme lengths, chasing celebrities in cars and hounding them on the street.  As a result, celebrities often try to leave the area in order to get someplace where they can go about their business in peace.  In some instances, like that with Lindsay Lohan and Princess Diana, this will lead to a car chase with ends in a collision.

            Celebrities’ right of privacy is limited as a result of their line of work.  Because they choose to enter a career that puts them in the limelight, celebrities face the consequences of giving up a large portion of their privacy.  They still are able to protect themselves somewhat from paparazzi as a result of right to publicity statutes passed by states across the country.  However these statutes do not protect a celebrity from the ever prying eyes of the paparazzi and the photographs that are taken of them.  Some states, like California, have tried to enact legislation to prevent magazines from offering cash incentives to paparazzi to go to extreme measures to get photographs, however it is unclear that these laws will be able to pass constitutional muster.  Federal legislation is needed to ensure a uniform law that protects public figures from the extreme measures that paparazzi often take to get a photograph.  The right of the paparazzi to take photographs falls within a fundamental First Amendment freedom, the freedom of the press, and therefore should not be cut off altogether.  However, for the safety of those concerned, it is important that limits be placed on the methods that may be used to photograph celebrities.

Endnotes:

[1] Haelan Labs. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953).

[2] Id.

[3] Daniel Engber, How do the Paparazzi sell Their Pictures?, Slate, June 3, 2005, http://www.slate.com/id/2120234/ .

[4] Id.

[5] Angela Donald, 10 Years After Princess Diana’s Death, Debate Continues About Celebrity Photographers, Findlaw, Aug. 30, 2007, http://news.findlaw.com/ap/o/51/08-30-2007/2e760023d908321e.html.

[6] Johnny Dodd, et al, Lindsay Lohan in Car Crash, People, Oct. 5 2005, http://www.people.com/people/article/0,,1114170,00.html.

[7] Paparazzi Chase Pitt, Jolie on Rickshaw Ride, MSNBC, Oct. 9, 2006, http://www.msnbc.msn.com/id/15189355/.

[8] Adrienne Young, What is a Celebrity’s Right of Publicity, 16 Nev. Law. 1, 1 (2000).

[9] Id.

[10] Jennifer Carpenter, Internet Publication: The Case for an Expanded Right of Publicity for Non-Celebrities, 6 Va. J.L. & Tech. 3, 7 (2001).

[11] Young, supra note 8, at 2.

[12] Id. at 3.

[13] Samantha Katze, Hunting the Hunters: AB 381 and California’s Attempt to Restrain the Paparazzi, 16 Fordham Intell. Prop. Media & Ent. L.J. 1349, 1362 (2006).

[14] Id. at 1355.

[15] Id. at 1353.

[16] Galella v. Onassis, 487 F.2d 986, 991 (2d Cir. 1973).