Friday, December 12, 2003

Barbra Streisand - Sabine Christiansen - Alida Gundlach - Right to Privacy - Freedom of the Press - Copyrights


Did the lawyers here bring a cause of action based on the wrong line of argument?
A legal action brought by Barbra Streisand in the US - which charged a violation of the right to privacy through the internet publication of aerial photos of her Malibu Beach home - now also finds comparable cases in Germany involving publication of aerial photos of the Mallorca (Spain) homes of Sabine Christiansen and Alida Gundlach, two popular German TV journalists.

The Barbra Streisand Case

The Barbra Streisand case involved her Malibu home, raising the legal issue of whether publication of an aerial photo of the house and surrounding property - without any photo of her person on that photograph - violated Streisand's right to privacy (the online text caption to the photo does identify the house as belonging to Streisand).

This case was dismissed just a week ago and reported at The Smoking Gun, which has scan-copied the decision to that website. Allan J. Goodman, Judge of the California Superior Court, made a similar holding as the court in Germany, finding no violation of the right of privacy and expressly finding that it made no difference that the image was published on the internet and was thus available worldwide for all to see or that the image was offered for sale online as part of an allegedly environmental "photo project" of the entire California coastline.

The Sabine Christiansen and Alida Gundlach Cases

The German cases were brought to my attention via the December 12, 2003 Newsletter of the German site LegaMedia.net, in an article entitled "Luftbildaufnahmen ja, Wegbeschreibung nein", discussing a case decided by the Federal Court of Justice (Bundesgerichtshof), the highest German court in cases of "ordinary jurisdiction", i.e. civil and criminal matters. [Please note that Germany has a separate court - the Federal Constitutional Court (Bundesverfassungsgericht) - which is charged to make sure that the provisions of the German Constitution, the so-called Grundgesetz, are adhered to.]

The German Federal Court of Justice held that it was within the freedom of the press to publish aerial photos of the homes, such photos not containing photos of the persons owning the homes, even though such publication involved entertainment of the media audience and had minimal information value.

The second case involved the publication of detailed instructions of access to the somewhat remotely located Mallorca home of Alida Gundlach. On that issue, the court held that such publication was not protected by freedom of the press, since it merely served to make Gundlach more easily accessible to the public, which invaded her privacy, and was not a right protected by the freedom of the press. For more information see also here, Netzeitung, Brinkmann and Beck.



The citation of the cases in Germany is:

Aktenzeichen: Bundesgerichtshof VI ZR 404/02 and 373/02

These cases can be found - in one or two weeks - published at the site of the Bundesgerichtshof under the menu-point Entscheidungen (Decisions). The Court is still slow in getting the cases posted and one can only presume this will improve in the future. Nevertheless, our description of facts and holdings above derives from the cited news accounts and the cases will have to be read in the original to be certain that the facts and holdings as presented above are accurate.



The Interesting Legal Question is...



The interesting legal question is, how close can an aerial photo get in detail - we have great telescopic lenses these days - before the right to privacy is invaded? Does it depend on the presence of a person on the photo? Is a permissible photo limited to "outdoor" formats? What about a telescopic aerial shot through a window? What about a shot showing personal sun chairs and furniture on the sun roof? with a towel on them? sun-tan lotion? lunch? a book just being read? how about showing a pot of flowers on a table in the garden? or refuse in great disarray? Is publication of the telephoto of a personal piece of clothing on the lawn prohibited? What about the shrubbery? or the details of the swimming pool? or the garden hose? - which is a fixed installation connected to the house, so not purely "outdoor" - imagine if the garden hose were pink - personal? Would it make a difference if the lawn was being watered or not at the time of the photo, i.e. a personal action in progress? or that some other activity was taking place? What if microscopic examination of the photo of the house would show the outline of someone standing at a window? What if it were Barbra Streisand? What if it were a burglar who had used a previous photo of the house to plan his break-in? What action would Streisand have against the photographer if the burglar stated that he used an aerial photo for his criminal plans - indeed, what if that was his modus operandi?



Enter define: modus operandi in Google for a definition of that phrase.



What about Copyright Law? Did Streisand's lawyers bring the right cause of action?



What is the copyright law on buildings? Buildings are protected by copyright, but Section 120(a) of the Copyright Act provides a specific exception that permission is NOT required to take or use photos of any buildings ordinarily visible from a public place. Obviously, the ground below us is ordinarily visible from the sky. But is a plane or helicopter in the air considered "a public place" in the circumstances of this case? If not, then the freedom of the press argument is surely irrelevant since, according to a non-binding "opinion" posted by Tyler T. Ochoa, Associate Professor, Whittier Law School, "news" is not exempted from this limitation. Here is the applicable law:



Section 120. Scope of exclusive rights in architectural works

(a) Pictorial representations permitted.

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.




This provision of the Copyright Law has only existed since 1990.



As noted in the case Leicester v. Warner Bros.



"On March 1, 1989, the United States joined the Berne Convention for the Protection of Literary and Artistic Works. To comply with this treaty obligation, Congress passed the Architectural Works Copyright Protection Act of 1990 (AWCPA), establishing a new category of copyright protection for works of architecture. See H.R. Rep. 101-735, at 4-10.



As defined in 17 U.S.C. S 101, an 'architectural work' is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features."




First of all, all air space is everywhere restricted, subject to many special regulations and certainly not "a public place" in the normal sense. Put another way, not all air space is "a public place". The opinion states that "Air travel is a commonplace of modern society and recreational or purposeful flights over the California coastline are commonplace events that people who chose to live in the area must accommodate", but no one expects or wants helicopters hovering closely over or near their property. That is a different matter.



Limitations are thus set by regulations on flight elevation, for example, precisely in order to protect private residential areas from intrusion, noise and other harmful effects. Moreover, in the litigated case, one page of the website of the photographer sued by Streisand would indicate that some kind of a special transition was required from Los Angeles International Airport in order to fly his helicopter at 500 feet in the Malibu area - at which height the photo was taken, so that this certainly does not look like the kind of normal "public place" intended by the copyright statute drafters. In other words, I would argue that low flying planes and helicopters do not fit the definition of "public place" referred to in the statute, since these require special permits to be where they are - hence, giving them the right to exploit commercial photos taken from such vantage points would give them an advantage to which they are not legally entitled. Thus a good case could - in my opinion - have been made that the copyright law is violated by commercial publication of pictures made from such a basically restricted and ordinarily not visible "public" aerial location. The copyright law does not prohibit the taking of such pictures - but it should then reserve the commercial exploitation of such photographs to the copyright owner of the building architecture. This would be in the spirit of the copyright law as of 1990.

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