Nakedness and Publicity

Smartphones and similar technologies have allowed individuals to take naked pictures of medical patients, showering athletes, and sexual partners and then to place them, without their subjects’ permission, on the web. Illicit distributing of former partners’ photographs, known as “revenge porn,” has received the most attention. Many states have criminalized the practice, but their laws likely violate the First Amendment. Further, because these laws typically cannot be used against websites or other distributors, these laws cannot stop compromising images’ online proliferation. This article is the first to argue that publicity rights provide a better remedy. These rights typically attach to celebrity features, such as Greta Garbo’s face, which have market value, and therefore have been overlooked as a remedy for revenge porn. But, the profusion of internet porn sites demonstrates there are interested eyeballs for almost anyone’s naked body. Because these eyeballs can be leveraged into internet advertising and promotional revenue, they create a financial interest that the right of publicity can protect. In contrast to criminal sanctions, publicity rights offer an efficient, private remedy for revenge porn as well as naked photographs from the locker room or hospital. Unlike other forms of liability, publicity rights fall outside the Communications Decency Act’s immunity and thus can be used against websites and subsequent image distribution.