She-Hulk v. Paparazzi

Today’s post was inspired by a question from the enigmatically-named Master182000, who recently reminded me that I hadn’t gotten around to it.  The question points to a 1985 John Byrne-era She-Hulk story (in Fantastic Four #275) in which She-Hulk is photographed while sunbathing on the roof of a tall building (maybe the Baxter Building).  The paparazzi used a helicopter to take the photos, the propellor wash of which blew away the towel she was covering herself with.  As Master18200 summarizes:

Later that day [She-Hulk] (in alter-ego form) and her friend track down the chopper, intimidate the pilot, and confront the photographer, who owns a tabloid called “The Naked Truth”. She confronts him, telling him since She-Hulk is a member of the SAG [as well as other show business unions] and images of her require her release before going to print. The photographer balks, claiming that She-Hulk is a ‘public figure’ and thus images of her are in the public domain and thusly don’t require She-Hulk’s release to print. He carries this argument forward until She-Hulk appears and crunches the photographer’s safe.

This led to the following questions:

1) Which party’s interpretation of the law is more accurate?
2) At what level of celebrity does a person lose 100% of their ‘media rights’ or become ‘public domain’ as the photographer suggests? Is this issue a settled matter at Federal law level or State law level?
3) Aren’t there issues with the way the pictures were taken? I don’t know much about aviation laws, but that chopper was pretty close to the building, close enough for She-Hulk’s clothes and stuff to be blown around.

I’ll take them one at a time.

I. So Who’s Right?

Well, technically neither of them.  There’s nothing special about being a member of SAG that would grant someone more rights than usual with regard to their image, unless SAG has negotiated an agreement with the other party (e.g. a movie studio).  Presumably the tabloid has no agreement with SAG or any other union.

On the other hand, public figures can still have an expectation of privacy, and the roof of a 30 story building, while somewhat exposed, is still a place where most people would have a reasonable expectation of privacy.  Furthermore, She-Hulk was covered up initially and only became exposed because of the close approach of the helicopter, which was intentionally done to blow away her towel.  The First Amendment wouldn’t protect that kind of action.

So She-Hulk is right in that the photographs can’t be published, but not for the reason she offers.

II. Public Figures, Invasion of Privacy, and the Right of Publicity

The notion of a person being a “public figure” mostly has to do with slander and libel, the standard for which for statements about a public figure is higher than for statements made about ordinary people.  Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).  As Chief Justice Warren described it in his concurrence, public figures are those who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”  Curtis Publishing, 388 U.S. at 164.  As between federal and state law, this is a federal First Amendment issue.

Is She-Hulk a public figure?  Maybe.  It’s hard to get a sense of just how famous any particular comic book character is within their own universe (with a few exceptions such as Superman).  But even if she were, that would only matter for purposes of libel and slander.  And as the sleazy tabloid owner said, the pictures are accurate depictions of what happened, so truth might well be a defense to any libel or slander claim anyway.

But that’s not the claim She-Hulk should be bringing.  What she should be claiming is invasion of privacy (which, when it involves nudity, is a crime in many states) and violation of her right of publicity.  These would be state law claims.  All of this would be sufficient to claim significant damages if not prevent publication of the photos outright (although the courts are pretty loathe to engage in censorship).

III. Aviation Laws

Nowadays the regulations regarding helicopter flights in and around Manhattan are fairly strict.  There are no-flight corridors, weekend bans, and other rules.  But these are mostly new developments, often in response to noise concerns.  Thirty years ago things were a little more free-wheeling, as far as I can tell, and private helicopters may well have been free to more or less buzz buildings.  Of course, had been an accident it would likely have been very easy to establish the tabloid’s negligence or recklessness.

IV. Conclusion

In the US the paparazzi can get away with a lot because of the stringent protections of the First Amendment.  But (perhaps unsurprisingly) ambushing someone with a helicopter in a private space and forcibly removing their clothing is beyond the pale.  She-Hulk (as attorney Jennifer Walters) could probably have succeeded in court where She-Hulk (as She-Hulk) failed using traditional Hulk methods.  In the end, the pictures were published anyway, but the developer messed up the skin color so that the pictures didn’t look like She-Hulk.  A court case might have meant a more satisfying result.  At the very least the damages award (and possible criminal sanctions) might have driven the tabloid out of business.

32 responses to “She-Hulk v. Paparazzi

  1. Was the helicopter getting closer meant to blow her towel away or just to get the photographer a better vantage point?

    • It was explicitly done to remove her towel.

      • Isn’t forcibly undressing someone against their will considered sexual assault?

      • I’m not sure that it would be in New York, unless the manipulation of the towel by the propellor wash would constitute “sexual contact,” which I think would be a hard sell in this case. As explored in this post, there is a theory under which it could constitute indecent exposure (“exposure of a person”). It’s kind of odd to me that removing someone’s clothing isn’t clearly a sex crime, which makes me think I’m missing something. Removing the clothing directly (as opposed to rendering it invisible as Sue Storm did in the linked post) probably wouldn’t even be an assault since there is no injury, although it would be a battery for tort purposes.

      • “It’s kind of odd to me that [forcibly or involuntarily] removing someone’s clothing isn’t clearly a sex crime.”
        If there’s no sex, and no attempt to have sex, how can it be a sex crime?

        It’s invasion of privacy, sure, but “sex crime”?

      • Chakat Firepaw

        Let’s see: It would be an application of force against a person for the purpose of sexual gratification. Pretty much the textbook definition of sexual assault up here in .ca. I even seem to recall some cases of ‘forced disrobing’ making the news with the crown having laid charges.

        (Actually attempting to have sex would make it aggravated sexual assault.)

      • “It would be an application of force against a person for the purpose of sexual gratification.”

        Objection, assumes facts not in evidence. WHY is involuntarily removing someone’s cloting “for the purpose of sexual gratification”?

    • I didn’t mean to say that removing someone’s clothing is inherently for the purpose of sexual gratification, although I can see how you would read what I said in that way. My comment was intended to be taken in the context of the topic at hand, where the removal is directly aimed at exposing the body to be ogled.

      • But ogling is not sex, either. And in the case at hand, the purpose is to take a photograph, which is to be used for financial gain. Now, some people ARE sexually gratified by thinking of financial gain, but…

      • Chakat Firepaw

        Groping someone’s ass isn’t sex either but it’s still sexual assault. As I mentioned before: Where I sit, when you reach the point of actually having sex you are _beyond_ sexual assault and are now looking at aggravated sexual assault.

        That the sexual gratification is going to be had by a third party doesn’t change the fact that sexual gratification is a goal.

      • “That the sexual gratification is going to be had by a third party doesn’t change the fact that sexual gratification is a goal.”

        Then differentiate taking a picture of someone’s bare feet without their consent. There are people who go for that sort of thing.

      • “Groping someone’s ass isn’t sex either but it’s still sexual assault.”

        No, it’s battery.

      • It can absolutely be sexual assault (or a similar crime), depending on how the crime is defined in the jurisdiction. In New York, for example, groping another person’s buttocks without their consent could be charged as 3rd degree sexual abuse: “subject[ing] another person to sexual contact without the latter`s consent”, with sexual contact defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party.”

        In California: “Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery.”

        And before you say “oh, you just said ‘groping’, not ‘groping with the requisite intent for sexual gratification’, so I was technically correct”: “groping” implies such intent, as opposed to mere “touching.” From the definition of “grope”: “feel or fondle (someone) for sexual pleasure, esp. against their will.”

      • My previous message should have been read as a personal expression of “what the law should be”, and not as a statement of “what the law is”, as with my previous comments in this thread.

        Had I meant to indicate the actual current status of the law, I would have included a citation to the source.

        For example, I believe that under current law, neither using a helicopter to remove a towel covering a person’s nude body, nor ogling the resultant nudity, nor photographing it, would be sex abuse.
        Sex abuse requires “sexual contact” (ORS 163.415, 425, 427). “Sexual contact” is defined in ORS 163.305(6). I did not look up the annotated statute to see what cases, if any, interpret the statute.

        However, using the helicopter to remove the towel, viewing the result, and photographing the result would create liability for invasion of privacy under ORS 30.865, and criminal liability for the crime of “invasion of personal privacy” under ORS 163.700, if the top of the Baxter Building is a place where someone has a reasonable expectation of privacy (and were within the jurisdiction of Oregon, which it is not… investigation as to whether Oregon’s laws track NY would have to be done to answer conclusively, as well as a factual investigation as to the relative privacy atop the Baxter Building, before proceeding.)

      • Chakat Firepaw

        “Then differentiate taking a picture of someone’s bare feet without their consent.”

        Presuming said feet were exposed using force: It would be harder to prove the sexual intent, (likely sufficiently so that the Crown isn’t going to bother trying).

        “’Groping someone’s ass isn’t sex either but it’s still sexual assault.’

        No, it’s battery.”

        No it’s sexual assault, (Canada has no such charge as battery). In fact it’s one of the standard examples of a sexual assault.

        Your attempts to move the goalposts is noted and your concession of the intervening ground accepted.

      • “Presuming said feet were exposed using force”

        Presuming no such thing (speaking of moving goalposts).
        Taking a picture of somebody in a state of undress, without their permission, is invasion of privacy, it is NOT sex abuse.

        I don’t consider the word “groping” to be inherently for sexual gratification; the word I’d use for that is “fondling”. “Groping” has other meanings that do not imply sexual gratification is the goal. For example, “groping in the dark” can mean something sexual, but it can also mean that one cannot find the lightswitch. “Fondling in the dark” is unambiguous.
        YMMV. I think the third-degree sex abuse statute is overly broad, and captures some activities that either should not be criminalized, or should be charged under other statutes. But nobody lets me write statutes.

      • Chakat Firepaw

        “‘Presuming said feet were exposed using force’

        Presuming no such thing (speaking of moving goalposts).”

        If there is no force involved it is not analogous to the situation in question, (which, if you go back to the OP, you will see is about forcibly disrobing a person for the purpose of taking a titillating photograph). That’s why I made note of the presumption, perhaps I should have also made note of the contrasting possibility in order to take account of your seeming desire to minimize the extent of what counts as a sex crime[1].

        Had She-Hulk simply been lying there exposed then the events in question would not have been a sexual assault under the CCC, (and likely not under most other sets of criminal law). Sexual assault required _both_ force and sexual intent, simply taking the picture isn’t enough nor would removing the clothing with some other intent, (e.g. it’s cloth of gold and you’re stealing the dress).

        Regarding groping: You will notice that I didn’t simply say “groping,” I said “groping someone’s ass.” While there are many non sexual uses of the word groping, using it to describe what you are doing to someone’s rear end generally isn’t one.

        To be quite blunt, this sort of semantic quibble is nothing more than a smokescreen. Its only use to hide the fact that you have no actual response and by pretending to not understand what was said.

        [1] Something that is sounding to me a lot like “but what about the menz?!?!”

  2. What does the law in New York says about being naked in private property but still in view from public areas (like near a window, or on a lawn facing the street, or in this case, in a rooftop where people in public airspace and nearby taller buildings might see her) ? Is that indecent exposure? Is it still a crime if you get naked unintentionally but in a manner you should’ve been able to avoid?

  3. If I understood the story correctly, She-Hulk at the time was an active-duty member of the Fantastic Four. I don’t know if that gives the photographer more precedence or not, but being a member of such a group would certainly be akin to being as famous as say, an Avenger.

  4. Honestly, you have to wonder about the sanity of paparazzi that try to harass anyone with the word ‘hulk’ in their name. I don’t care whether it’s vanilla Hulk, She-Hulk, red Hulk, grey Hulk, chibi Hulk, Hulkling, or any other spinoff or alternate reality Hulks; I sure as hell am not deliberately annoying anyone even vaguely Hulk-like in case they’re the sort of Hulk that responds be being stripped naked by hitting you so hard pieces are found in the next time zone.

    • While I’ll grant you Hulks are a whole new level of risk, even in our humdrum ‘verse paparazzi often do very offensive things to people who are guarded by utterly humorless men with guns. (I think that this is actually a pretty strong argument against the odd guns-are-mind-control-devices-that-make-people-ruthless-killers line of thought, since “He needed killin'” would certainly seem to apply to a lot of these a-holes and yet they rarely if ever seem to get shot.) Not to mention the utterly reckless things that they do in pursuit of “news,” the most famous example of which is of course the death of Princess Diana.

      So really, for once I think the comics are being fairly realistic here. 🙂

      • There is a key difference that the mentioned humorless people with guns are entirely rational people who know the precise boundaries of self-defense and defense of others laws. Hulks, by contrast… Are not known for their impulse control.

      • Not so much. Hulk is usually depectted as having severe mental impairment. She Hulk is much more competent, but she does have a nasty temper.

  5. The question of “public figure” doesn’t just apply in defamation cases. It also applies to the “newsworthy” prong of invasion of privacy torts. If someone is a public figure, their actions are more likely to be newsworthy and thus it is harder to invade their privacy, for they have less expectation of privacy than does a non-newsworthy person. Thus, the zone of privacy protection available to famous and influential people is not the same as the zone of privacy around ordinary, non-famous people.

    As for the aviation laws, quite obviously the area surrounding the Baxter Building was open to private aviation… evidenced by pogo plane, fantasticar, flying surfboard, jetpack, and hovercraft. Plus also simply hovering in mid-air with no visible means of support, as performed by Uatu. I don’t remember any helicopters in specific, but I’m pretty sure that if the area around the Baxter Building was a no-fly zone, Reed would have grounded the FF’s flying vehicles, because he’s a rules kind of guy.

    • Tch. How did I miss the obvious… flight by means of self-ignition. Although Johnny didn’t have the same reverence for rules that Reed had.

    • I’m fairly sure that the only ting newsworthy about this specific incident is that the papparazzi went as far as to forcibly remove the towel, actually.

      • It’s not the incident that’s newsworthy, it’s the person. Somebody peeing in a mop bucket isn’t newsworthy, either… unless it’s Justin Bieber. Going topless on the beach isn’t newsworthy… unless you’re currently married to an heir to the throne of England. Riding on a roller coaster at the boardwalk isn’t newsworthy… unless you’re Beyonce.

  6. Thanks for taking my request, you legal eagles you!
    I got another one in your backlog somewhere, also involving the Green Lantern.
    You might have to consult an expert on this one, since it involves criminal law and wherever Coast City is (Pensacola? L.A.?).

  7. Does she have a right of publicity claim for damages just because the photo was taken? I don’t think so. Although she might have a claim for damages depending on how the photo is published. Historically, NY allowed right of publicity claims for use of someone’s photo in advertising, and the wider scope of right of publicity claims originated in California (because of SAG lobbying).
    It depends on what “for the purposes of trade” in NY CLS Civ R § 50, 51 means, and I don’t have current access to an annotated reporter to pull cases interpreting the statute.
    But the first part of section 50 pretty clearly says that a person (or entity) is guilty of the misdemeanor when the USE the photo improperly, not when they create or obtain it.

    So, unless the statute has some interpretation that isn’t clear from the text of the statute, I don’t think that She-Hulk has a claim under NY law for violation of her rights of publicity.
    The proper grounds for legal action are invasion of privacy, and only invasion of privacy. She will have to overcome the question of “newsworthiness” there, where her status as a public figure will be relevant. If she had the same problem the original Hulk has, wherein shirts are shredded by the transformation, and she were rendered (and photographed) topless in battle with some supervillain. If that were to happen, the newsworthiness of the battle might outweigh the privacy interest of the participants. The newsworthiness of sunbathing, nude/topless or not, however, probably isn’t going to outweigh the privacy interests.

    • A right of publicity claim could be brought in order to enjoin publication even before publication occurred or to prevent future publication. The New York statute expressly authorizes the plaintiff to “maintain an equitable action” in the courts to “prevent and restrain” the use which is in violation of the statute (emphasis added). Damages could also be sought for any past publication.

      With regard to the sale and publication of unauthorized nude photographs: the publication of such photographs, if unrelated to a newsworthy event, can be enjoined. Barrows v. Rozansky, 111 A.D.2d 105 (1985). In Barrows the plaintiff had consented to the photographs being taken but they were for private use. In the She-Hulk case there was no consent of any kind and indeed the photographs required an invasion of privacy by the photographer, making the case all the stronger. See also, Gallon v. Hustler, 732 F.Supp. 322 (N.D.N.Y. 1990) (awarding $30,000 for unconsented publication of amateur nude photographs of plaintiff).

      “For the purposes of trade” is an extremely important part of the statute. The NY courts have interpreted it very narrowly, and one really needs the case law in order to understand what the statute means in practice. She-Hulk barely scrapes by in this case only because the pictures were unconsented to and did not accompany a newsworthy event.

      In New York all kinds of privacy claims must be brought under the privacy statute, but the NY courts more-or-less recognize that despite the terminology, the statute subsumes (to one degree or another) other kinds of claims, including publicity and disclosure of private facts.

  8. Interestingly, in Sensational She-Hulk #28, Shulkie uses this very incident to help her get out of a contact with Mestophales.

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