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.
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.