Ash
ley Alexandra Dupre‘s lawyer, Don D. Buchwald, has been lashing out at media outlets who are publishing (on paper or on the web) photographs of his client, Ashley Alexandra Dupre, also known in court documents as Kristen. The photos may be found everywhere on the internet; just do a Google search. The photos at issue include Ms. Dupre in suggestive or scantily-clad poses. Buchwald, her lawyer, argues that Dupre did not consent to the use of her photos in this manner, and the usage may be a violation of federal copyright laws. He said the photos have appeared on commercial Web sites without her consent.
It seems clear that even Mr. Buchwald realizes that his client’s case in this regard is weak. He asserts that she did not consent to the use of her photos “in this manner” and that the use may violate federal copyright law. That is not particularly strong language from a Kelley Drye partner. In fact, the protests seem so weak that one might conclude that they are being made for the sake of protesting, but Mr. Dupre is really hoping that the publicity will do something for her struggling music career. [Think Vanessa Williams post-nude pictures release.]
The notion that the protests are more “for the record” is supported by the fact that her consent is hardly required now. Her consent is not required for a few reasons: 1) she voluntarily placed these photos on her profile pages at various social networking web sites; 2) her friends and …colleagues… uploaded photos of her to their profile pages at various social networking web sites; and 3) most importantly, whether she likes it or not, she is now a public figure. She is newsworthy. When she knew Client 9 was the governor of the state of New York or not, he was. If she knew, then she knowingly took the risk of being found out. At the very least, she knew her clients were wealthy, high-profile public figures (she must have with names like Client 9 and rates as possibly high as $4300 for 4 hours). Otherwise, she engaged in prostitution in a state or states where she knew it was illegal. In the event of a bust, her name and identity could become public information even if the bust had not resulted from a high-profile client like Governor Spitzer.
While it is true that Ms. Dupre may not have intended her mySpace profile to ultimately link her to an expensive call girl ring, oops and oh well. Everything she did, she did voluntarily, we presume: she sought a music career, she placed her pictures and her bio (minus the call girl entry) on various social networking sites, and she engaged in prostitution. She did these things with the knowledge of the attendant risks: musical success or failure, photos being available to the public at large, a high income from prostitution, the possible arrest for prostitution.
While I probably think that Mr. Buchwald is correct: Dupre did not intend for her photos to be used in this matter, that horse has left the stable. She is now a public figure. She is now a news item.
The law attempts to strike a balance between an individual’s right of publicity and free speech rights to permit specific uses of an individual’s identity. The First Amendment provides a hierarchy of protection under the so-called “newsworthy” exception depending upon how the individual’s identity is being used. The greatest protection is provided for news, lesser protection is provided for entertainment and fiction and the least protection is available for portrayal of an actual person’s identity is used to sell stuff.
The newsworthiness exception includes information about the real world and is generally construed to encompass the following: (1) current news items, news that has occurred in the past and information that is not strictly news, but is still informative; (2) media presentation on “public issues”; (3) factual, educational and historical material; and (4) entertainment and amusement concerning interesting aspects of an individual’s identity. There are two critical questions that must be answered before using an individual’s identity under the newsworthiness exception. First, is the unauthorized use of an individual’s identity really news that is subject to First Amendment protection? Second, is there a reasonable connection between the use of the individual’s identity and the news that is being conveyed? It seems clear in this case that the answer to both questions is “yes”.
While Ms. Dupre and Mr. Buchwald are complaining about the use of her photos, I suspect that neither objects too much. Ms. Dupre may get her music career and Mr. Buchwald or someone else at his firm may represent her when it does.
UPDATE: My suspicions are confirmed by the second-to-last paragraph of the Wikipedia entry for Ms. Dupre:
An unsigned singer, her single “Move Ya Body” set a record for how fast it commanded the top price on the music-download site AmieStreet.com reaching the site’s maximum of $0.98 per download in a matter of 5 hours following Dupré’s identity as the call girl “Kristen” being revealed by The New York Times on March 12, 2008. Another single, “What We Want”, has been played more than 3 million times on the Internet since the scandal erupted. She has reportedly earned as much of $1.4 million from download sales of her singles on Amie Street in the two days after her name became public.
See http://www.huffingtonpost.com/2008/03/14/millionaire-call-girl-sp_n_91659.html.
