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Chiquita Banana
03-16-2009, 05:04 PM
Hello all.

This is a bit complicated. My MC is going to have some bedroom/naughty/compromising pics of her famous boyfriend. I haven't yet decided if HE will be aware of their existence. In any case, the only reason she's taken them is to show her friend/hair stylist who helped her plan the seduction.

Later in the story, her employee is trawling through the MC's laptop -- without permission. She finds the pictures and sells them to a tabloid.

After it all comes out, my MC will want to get revenge on her employee, so I'm wondering how this would go. The employee will have been paid a large sum by the tabloid, which she'll most certainly lose, but will that go to my MC for damages or will it go back to the tabloid due to the fact that the photos were stolen? Will the tabloid people be suing her too? Any chance there'd be any jail time involved?

I thought the employee could argue that the MC and her boyfriend hired her to document their sex life, but even if that were the case, wouldn't the photos be the property of the MC & boyfriend?

I guess I just want to know how realistic and believable it is that my MC would be able to get her revenge in the end.

There is one more complication, though. The boyfriend (an ex by this time) is going to be out for blood and he is a billionaire, so he'll have a full legal team who I imagine could crush anyone they're after. Would he have a case against my MC? Initially he thinks she's the one who sold them to the tabloids. I suppose it's easy enough to prove that she wasn't -- the money went to the employee.

Still, I wonder if there would be a case against her. If he's aware of the pictures, I know he couldn't fault her for the fact that they were stolen while in her possession, but if they were taken without his knowledge, would that change things?

Sorry so complicated! It started out so simple... I've asked quite a few lawyers about this (all friends and family members) but none of them have gotten back to me after a few weeks. Guess fictional cases aren't high priority on their case loads. Hee hee.

Thanks in advance!

All the best,
Chiq
:hi:

WriteKnight
03-16-2009, 06:35 PM
The boyfriend's knowledge of the photos is an important element to the story. You MUST decide if he willingly poses or not.

IF not, then he has a case against the girlfriend. She has committed a crime. Do you want to make your MC a criminal?

The employee who steals the photos is guilty of theft. The Tabloid who knowingly publishes them, is conceivably guilty of several crimes.

The MC can charge the employee with theft - the state can prosecute. The MC can sue the Tabloid for invasion of privacy, lible, and perhaps even copyright charges... all depends.

The Tabloid can sue the employee, especially if the employee misrepresented the way she/he got the photos.

Also, laws and specifics on charges vary from state to state.

What you are setting up is a pretty typical mess used on a law school exam. You'll need to talk to an attorney in the state where the story is set to hammer out the details.

But the first thing to do is decide if you want your MC to commit the crime.

RJK
03-16-2009, 07:00 PM
First point: MC takes pictures without BF's knowledge. It is not a crime unless she intends to use the pictures for gain. If her only intent is to keep them for posterity, she is in deep do-do with the BF but is not guilty of any crime.
Second point: It must be proven that employee stole the pictures and did not have a legitimate right to them. Billionaire has lawyers to do this. Employee should be found guilty. MC will find herself on dirty end of stick with BF because of entire incident, and could be found liable for damages, but what would she have that a billionaire would want?
Billionaire's lawyers can force tabloid to print retraction, return photos, and pay damages. Employee will probably end up in jail.

WriteKnight
03-16-2009, 07:35 PM
Depending on the scenario of the pictures - the MC COULD be guilty of the crime. Invasion of privacy - right to publicity - again, much will depend on the context. Most people have a 'reasonable expectation of privacy' while engaged in the sex act., or changing clothes, showering etc.. Breeching that expectation - with or without the intent to profit from them - can be a crime.

As stated, much will depend on the context of the photos.

(Among the issues - were the photos taken in her home, or his, or some third party location such as a hotel?)

Chiquita Banana
03-16-2009, 09:08 PM
Hmm. Thanks for the info, Write Knight and RJK. I still have a lot to think about. I definitely want my character to by sympathetic and not seen as a criminal. She doesn't really want to take the pictures but feels indebted to her hair stylist who has basically preened her to land the billionaire, and all along, he's been saying he wants saucy pictures of the guy.

On the other hand, I can't imagine the boyfriend willingly posing for the photos. He's in the public eye and would worry about them getting out.

A few points:

location - it takes place in New York and the photos will be taken at the guy's apartment. She lives in a typically cramped place that she probably will never bring him to.

nature of the photos - I think they'll probably be pretty standard - nothing perverse or anything, but tittilating to the public and horrifying to those involved

if the boyfriend sues the MC - she does have something to lose. She has a small business that she holds very dear and if it ended up being destroyed by all of this, it would devastate her. Not an option - I'd rather scrap the whole tabloid photos idea.

But I do hope I can make this happen. The hair stylist/pimp and his relationship with my MC is one of my favorite things about the story and there is no point of including him if I can't come up with a feasable scenario.

Thanks again for the input!

dirtsider
03-16-2009, 09:25 PM
Do the photos need to be of a sexual nature? The photos could still be embarrassing, such as getting him stinking drunk or in extremely silly moment. Stuff that a billionare, who has a rep and image to maintain, wouldn't want to get into the hands of the tabloids. The MC could still show the hair stylist. As matter of fact, these photos could then be laid aside for whatever reason, the employee finds them, and voila - you're good.

WriteKnight
03-16-2009, 09:30 PM
You should reseach the following issues as the law relates in NY.

Electronic surveillance/eavesdropping (Digital cameras/video in particular)
Right to privacy - domicile
Right to publicity
"Peeping Tom" laws
Invasion of Privacy
Libel/Slander
Copyight

Good luck

Chiquita Banana
03-16-2009, 09:38 PM
Hello again.

Dirtsider, I like your suggestion, but the photos do need to be of a sexual nature. The hairstylist has the hots for the BF and really wants to see him sans clothing.

WriteKnight, thanks for pointing me in the right direction. I'll get to Googling.

All the best,
Chiq

ideagirl
03-17-2009, 05:28 AM
This is a bit complicated. My MC is going to have some bedroom/naughty/compromising pics of her famous boyfriend. I haven't yet decided if HE will be aware of their existence. In any case, the only reason she's taken them is to show her friend/hair stylist who helped her plan the seduction.

Later in the story, her employee is trawling through the MC's laptop -- without permission. She finds the pictures and sells them to a tabloid.

After it all comes out, my MC will want to get revenge on her employee, so I'm wondering how this would go. The employee will have been paid a large sum by the tabloid, which she'll most certainly lose, but will that go to my MC for damages or will it go back to the tabloid due to the fact that the photos were stolen? Will the tabloid people be suing her too? Any chance there'd be any jail time involved?

What country is your story set in? What country is the tabloid that publishes them in?

Assuming it's the UK or US, and assuming your MC took the photos, the tabloid will be liable to her for breaching her copyright by publishing without her consent. (If she didn't take the photos, she has no claim against anyone, except maybe some obscure computer-related claim against her employee, but don't bet on that.) The tabloid may have a claim against the employee--probably a breach of contract claim, since it's likely that the tabloid would've had her sign a contract in which she represented that she had the legal right to sell the photos, and when that turns out not to be true she has breached the contract. So the tabloid may get its money back from her, but it will also have to pay damages your MC. The damages are not likely to be the amount that it paid to the employee, but rather its profits and perhaps some sort of punitive damages.

The boyfriend may also have a claim against the tabloid too, although that could be complicated by the fact that he's famous; in the US famous people have little in the way of privacy rights. But famous people do have rights of publicity--i.e. the right to control their own images, so that people can't just use pictures of XYZ famous person to sell things--so he'll likely bring a claim for violating his right to publicity.

I'm talking US law, here.



I thought the employee could argue that the MC and her boyfriend hired her to document their sex life, but even if that were the case, wouldn't the photos be the property of the MC & boyfriend?

The photos themselves are the property of whoever took them, unless the photographer signs a contract with someone that says otherwise (e.g. you could hire someone to take pictures of you and have them sign a contract that says copyright in the pictures is yours). However, the right to publish the photos belongs to both the photographer and the subject (at least with photos like this--photos of famous people taken outside or in public places can be published with only the permission of the photographer, and photos of regular people in crowds or that have public interest [i.e. news story photos] can also be published with only the permission of the photographer, by which I mean you don't need the subject's permission).

So, that means that in order to have any rights at all in the photos, the employee needs to have taken them (or else the photographer needs to have transferred her rights to the employee, but that's a whole 'nother story). And then on top of that, to be able to publish them, she needs to have the consent of the subject. Normally photographers get that consent by having the subject sign a contract to that effect. I'm not even sure if it's possible to transfer those rights orally--you might need a contract (not sure)--so if she didn't have one, she has no argument.



There is one more complication, though. The boyfriend (an ex by this time) is going to be out for blood and he is a billionaire, so he'll have a full legal team who I imagine could crush anyone they're after. Would he have a case against my MC? Initially he thinks she's the one who sold them to the tabloids. I suppose it's easy enough to prove that she wasn't -- the money went to the employee.

Still, I wonder if there would be a case against her. If he's aware of the pictures, I know he couldn't fault her for the fact that they were stolen while in her possession, but if they were taken without his knowledge, would that change things?

Prooooooobably not, though don't quote me on that. Unless she had some James Bond setup with hidden cameras and whatnot, and even then, especially if the photos are taken in her house as opposed to his, I'm not sure he has a case. The legal issue is not that the photos were taken, but that they were published. That has nothing to do with whether he knew they were being taken.

But there's no reason your MC couldn't get revenge on her employee, legally speaking.

ideagirl
03-17-2009, 05:36 AM
First point: MC takes pictures without BF's knowledge. It is not a crime unless she intends to use the pictures for gain. If her only intent is to keep them for posterity, she is in deep do-do with the BF but is not guilty of any crime.
Second point: It must be proven that employee stole the pictures and did not have a legitimate right to them. Billionaire has lawyers to do this. Employee should be found guilty. MC will find herself on dirty end of stick with BF because of entire incident, and could be found liable for damages, but what would she have that a billionaire would want?
Billionaire's lawyers can force tabloid to print retraction, return photos, and pay damages. Employee will probably end up in jail.

First point: Her intent does not determine whether it's a crime. Unless there's a law that says you can't take a photo of anyone, even friends/lovers etc., without their permission--and there almost certainly is no such law anywhere--it's not a crime.

Second point: There is no need to prove she stole them. If the MC says "I took those photos, therefore I own the copyright," the employee has to come up with a reason she has a right to the photos at all (e.g., "No, she didn't take them, I did"--but on these facts, that argument is doomed). Employee probably will not end up in jail, unless the prosecutor comes up with some weird theory like computer hacking (if she didn't have permission to use the computer). Selling/publishing photos you have no rights in is not punishable by jail time--it's just copyright violation--and neither is violating a famous person's right of publicity by using private unauthorized photos of them to sell magazines.

What we're talking about here is civil in nature, not criminal. The penalties are money damages and injunctions (e.g. perhaps the boyfriend could force the tabloid to recall and destroy all unsold copies of the tabloid).

Chiquita Banana
03-17-2009, 06:04 AM
Thanks for all the info, Ideagirl! Good. It sounds like I can make this work. Sorry to hear that I couldn't land the two-faced employee in prison though! :) Ah well. In another story...

Chiq

dirtsider
03-17-2009, 04:16 PM
Unless the employee broke into the MC's house to get the photos or took the computer and never returned it.

Rabe
03-17-2009, 10:05 PM
You should reseach the following issues as the law relates in NY.

Electronic surveillance/eavesdropping (Digital cameras/video in particular)
Right to privacy - domicile
Right to publicity
"Peeping Tom" laws
Invasion of Privacy
Libel/Slander
Copyight

Good luck

Okay, a mistake is made here. The problem with "right to privacy" is that it's considered a Constitutional right. As everyone should know, the Constitution is a limit placed on the invasion of rights granted to the people by the government. The girlfriend is NOT a government actor therefore cannot be considered a violator of this particular right.

Though, having said that, I cannot imagine a logical scenario wherein the girl is able to set up a covert system wherein she is able to photograph herself and the BF (and a billionaire? Really?) covertly. Without her committing some form of crime or what would be a crime if spun by the BF correctly. She'd have to 'break' into the apartment with the intent to commit this crime. A large group of vengeful lawyers could spin it this way even if the BF gave her a key to the place.

((a billionaire really?))

Libel/Slander - this only applies to the deliberate printing or uttering of damaging untruths. The fact that the boyfriend engaged in consensual sex with his girlfriend is not libel nor is it slander. Embarassing yes. Illegal no. Even the publication of the photos by the tabloid does not rise to libel because the printing of the photos is not defaming his character. And recall, the absolute defense against libel/slander is the truth.

The violation of copyright would then be something to handle by the girlfriend. As the creator of the work the copyright automatically belongs to her. So any violation of the copyright would be her issue.

As for the tabloid's violation of copyright - they have the good faith defense. Knowing that people are sue happy, I can't imagine that the tabloid doesn't have some form of legal document wherein people have to state that they have the rights to the material they are selling to the tabloid. With such a signed document, they would be able to make a case that they bought the photos, from the employee, in good faith. They then published materials which they bought from someone they thought to own the rights - and sold to them. So, in this case, I'm not sure where the tabloid doesn't have what amounts to more of a 'nuisance' case against them.

They did not engage in criminal behavior because of good faith - and they did not commit the civil acts of libel because they did not print anything that was not true - such as doctored photos showing the boyfriend engaging in sex acts with his girlfriend.

Rabe...

Smish
03-18-2009, 10:30 PM
Okay, a mistake is made here. The problem with "right to privacy" is that it's considered a Constitutional right. As everyone should know, the Constitution is a limit placed on the invasion of rights granted to the people by the government. The girlfriend is NOT a government actor therefore cannot be considered a violator of this particular right.


I'm sorry, but that's inaccurate. A person can sue a private actor in tort law for invasion of privacy (possible causes of action: Appropriation; Intrustion upon seclusion; False Light; Public disclosure of private facts). I may have left a few out; it's been awhile since I studied tort law.

Chiquita Banana
03-19-2009, 01:40 AM
Oh gosh. Glad I got the debate going. I'll take it all in and research as much as possible. :)

One thing though, Rabe:

((a billionaire really?))

Sure, a billionaire. This is a chick lit novel, and it's not uncommon to have characters who are celebrities or various other illustrious types. The guy in mine is a software tycoon - a Bill Gates type who looks like Superman.

Obviously I'm not going for ground-breaking literature here. :)