As The Vultures Descend on the Naked Corpse of J-Law

I like art, but I don’t necessarily understand it.  This probably explains why no one has ever asked me to be an art critic.  I have opinions, but they interest no one but me, so I tend to keep them to myself.  I’m not a Millennial.

When news broke that artist XVALA planned to do an exhibit at a Florida gallery using the stolen nude images of young celebrity women, it raised a disturbing problem:

A gallery in Florida announced their plans to drum up controversy and cash in on a high-profile sex crime for an exhibit by Los Angeles artist XVALA that will feature nudes of Kate Upton and Jennifer Lawrence that leaked over the weekend.

The plan is to print out the leaked, unaltered nudes of Upton and Lawrence on a life-sized canvas. Whether that’s legal, we’re not sure, but that’s the plan as E! Online is reporting it. The nudes will be part of a larger exhibit called “No Delete” that will open on October 30.

Is it legal?  There appears to be no doubt that the images were hacked, and this type of hacking, breaking into a person’s iCloud account, is a crime, as it should be. At first blush, the images would seem to be very much stolen property, even though digital “property” isn’t a good fit with historic concepts of property. But when XVALA claims to use stolen property to create art, does it then become art rather than stolen property, and therefore enjoy First Amendment protection?

Does it change because the hacking of celebrity images is a newsworthy event, and the images are easily found, sometimes at news sites and other times by basic search?  And since when is art limited by societal approval?  XVALA claims the art will be a commentary on internet privacy:

“We share our secrets with technology,” said XVALA, in a statement. “And when we do, our privacy becomes accessible to others.”

Yeah, well, that’s a pretty facile way to take stolen images and usurp them for your own purposes. Cool story, XVALA.  And is this “art” at all?  Truly, I have no clue.  But I can’t shake the sense that XVALA is just another vulture, picking at the misery of these women.

But if XVALA, so too are the detractors.  Self-described revenge porn “murderer” Carrie Goldberg rushed into the void when news of this art-rocity broke:

Well, it turns out another turd plopped into this dung heap:  an art gallery in St. Petersburg, Florida plans on exhibiting the hacked celebrity nude images in a show entitled “No Delete.”

Here’s a litigator’s perspective on ways to stop an exhibit like this one from happening.

Though the litigator turns out to be Goldberg, and what follows is a laundry list of generic causes of action, what’s curious is that there isn’t a moment’s hesitation to consider whether this is art or, as she gracefully calls it, a “turd.”  By turd, I gather there wasn’t a deep concern for First Amendment’s protection of art. No analysis needed if you call it a turd.

That’s because it’s taken for granted by the revenge porn criminalization advocates that this is their field day, their moment in the sun, with this extraordinary opportunity to seize upon the revelation of J-Law’s images and usurp them for their own agenda.

Like XVALA, this too reflects the vultures feeding on the corpse of these celebrity hacking victims.  Mary Anne Franks cranked out an op-ed, which the Daily News was happy to publish, to castigate those who “blamed the victims,” a central meme of the anti-revenge porn advocates.

The “lock your doors” analogy and its many variations – lock your car, hide your wallet, chain your bicycle, etc. – are familiar to anyone who has ever had a discussion about the sexual violation of women. This analogy is inappropriate on nearly every possible level.

There is hardly a more fundamental interference with basic liberty than that. This precaution sends the self-defeating and incoherent message that the problem of sexist bigotry and entitlement should be addressed by restricting women’s freedom.

Read more: http://www.nydailynews.com/opinion/precautions-privacy-article-1.1925809#ixzz3CXEPUAXP

Ironically, Eugene Volokh explained just the opposite, that prudence isn’t blame shifting, but just prudence.  The anti-revenge porn advocates must not read Eugene anymore, as not a word of criticism was uttered. Or it might have something to do with the fact that Franks once tried to claim Eugene supported her anti-revenge porn law, which was true, but she doesn’t want to piss him off enough to have him come out and slam it.  Ricky Gervais was not so fortunate, even though his advice had the appropriate “tone” that shouldn’t offend the unduly delicate.

But what happened to Jennifer Lawrence and Kate Upton and a bunch of other young women whose names aren’t particularly familiar to me was hacking, not revenge porn.  Had they stolen personal notes and revealed them publicly, it would have been no less hacking.  Had they stolen pictures of these women dressing in mom jeans, it would have been no less hacking.

The attempt to capitalize on the misery of these young women for another agenda isn’t any different based on your personal flavor of issues.  They are all vultures, picking, picking at the rotting corpse for their own selfish purposes. They are using these women. They are stealing from them just as much as anyone else.  It’s no better because they believe in their cause. Self-interest isn’t an excuse for being a vulture.

There was a crime here, computer hacking.  The images, regardless of whether you like them or not, think celebrities forfeit all privacy or not, are nudes or not, are the property of these women, and the fact that they are the victims of a crime doesn’t turn them into a public freakshow.  They should not be available for any purpose. Not for art. Not for advocates to feed off of for their own purposes.  Show some respect. Have some dignity. Don’t be a vulture.

44 thoughts on “As The Vultures Descend on the Naked Corpse of J-Law

  1. william doriss

    You don’t have to understand “art”, or like it. It is what it is.
    If you were to “understand” art, or happen to “like” it, it’s un-
    likely you would be a lawyer, as the professions of art critic and
    lawyer generally do not overlap in a Boolian logical world. If you
    catch my drift?
    Vultures have rights too, which the bird-watchers of the world
    generally do not appreciate. Also, pigeons, crows and sea gulls
    a not favored. Scavengers, all of em. We birdwatchers prefer
    “song birds”, especially the colorful ones.
    My comment for the day. All the best.

    1. SHG Post author

      I have the most amazing songbirds around my house. I sit outside in the morning, drink my coffee and marvel. I also have the occasional turkey and peacock, but they can get unpleasant if you don’t give them a cup of joe.

    2. Nowan Uno

      The presentation of a good legal argument, I would say, IS a work of art. Technically, so is a bad one. Technically, he IS an art critic, even if he didn’t realize it. It really isn’t that different.

      1. SHG Post author

        I would say this is utter gibberish. You can disagree. I may know what I like, but that doesn’t make me an art critic. My opinion only matters if I am knowledgeable enough to render one. I am no more knowledgeable about art than you are about law. My opinion is worthless, and I am no art critic.

        1. Nowan Uno

          I was actually complementing you there but that is kind of beside the point. My point was that legal arguments serve the same purpose as art just to a much smaller audience. They both are designed to communicate a perspective. Likewise, the critiques of each are also similar. They are not about what you like or don’t like but rather how they are communicated and to what degree they are effective.

          1. SHG Post author

            I understood, but compliments aren’t as important as accuracy. The word “art” is vague and subjective, and can be used to characterize, and thus justify, anything. This helps no one, particularly the artist.

  2. John Burgess

    While I agree with you, I wonder how this squares with the “Third Party Doctrine”? It seems that once private material gets in the hands of a third party, the fourth-through-Nth parties have all the legal rights in the world to do with it as they will.

    Now, that doesn’t mean that it’s tacky, disgusting, vulturesque, etc., but what creates the condition that it is illegal?

    1. SHG Post author

      If it was a criminal suppression issue, then it would be easily blown out of the water with the third party doctrine. But these aren’t defendants. Need I explain further?

    2. Nowan Uno

      There is another issue to consider as well. Because they are celebrities, this is now considered news and the exemption for publishing information that is news over protecting the privacy of individuals comes into play.

      1. SHG Post author

        That’s an interesting question. That it happened is news, but are the images themselves news? If so, it creates a circular dilemma.

        1. Nowan Uno

          It’s often referred to as the “news loophole” and is used by tabloid publications to publish paparazzi images all the time.

            1. Nowan Uno

              My apologies here. In haste my wording was poorly chosen and conveyed a tone that was not intended. If you will allow me to reword it, paparazzi photos that invade celebrities privacy are published all the time and are considered news worthy merely because of the public interest as a result of their celebrity status. How is this different?

            2. SHG Post author

              There is nothing comparable between images stolen from someone’s account and images taken by a papparzzi from a vantage point where he was lawfully entitled to be, except for both being pictures.

  3. a non-law prof

    If I’ve learned one thing in my writings on art, it’s that you should never be surprised about what passes as art or artistic argument anymore. Artists will find a way to do what you say isn’t art or isn’t valuable, and some will do it well. What’s interesting about the XVALA case, taste aside, is that revenge porn content is being artistically “reframed” to be part of a larger message concerning google, privacy, etc. Now, one could see a range of ways how revenge porn could be implicated in discourses of public interest–be it Anthony Wiener’s pictures concerning a candidate, or artistic commentary on the debate over privacy. I’m sure artists could even find ways to use non-celeb revenge porn pics to make an “everyman” point (eg, ordinary people are harmed by tech threats to privacy), they are creative like that. The CCRI rhetoric is loudly one-dimensional, but the first amendment issues around revenge porn grow more multifaceted.

    1. SHG Post author

      The introduction of artistic claims certainly raises a new crop of First Amendment issues that will be hard to address. Unless they’re just dismissed as “turds.”

      1. a non-law prof

        Well, everyone knows you can easily identify “real art” and then quickly call the rest “turds.” I think it’s usually on the label.

        1. Nowan Uno

          Unfortunately, these people don’t know how to critique art. Whether art is good or bad really has nothing to do with whether you agree with the message or not but rather whether it accomplishes what it was made to do. There is a lot of art that is meant to shock people into thinking about an important issue. To the point that it accomplishes that goal, and is effective, it is good.

          1. Beth Clarkson

            I think this is a valid point. This art is clearly provocative, shocking to many citizens and the subject of a lot of conversations and blog posts. I appreciate hearing the different opinions on the legality of it.

            In this case, is the hacking a crime of copyright violation or is there some other crime involved, like breaking and entering for computer equipment?

            Is the artist who uses the images guilty of something like copyright violation or would they, too, be considered to have a committed some other crime? Could they claim ‘fair use’?

            Thanks for any responses.

            1. SHG Post author

              Hacking and copyright are not mutually exclusive. In fact, they are entirely separate issues. The artist can claim “fair use” from the copyright violation, but that doesn’t answer the question of whether they are stolen property in addition to copyrighted images.

    2. Dissent

      Why do you call this “revenge porn content” instead of just describing it as “nude pictures” or “pictures that most people would consider personal or sensitive?” Public figures do not give up all rights to privacy just because they seek public attention in other settings or ways. And if they have to send takedown notices after the fact or sue for appropriation of likeness after the fact, the harm to their privacy is already done.

      Should intent (revenge, art, curiosity) even be a factor? Do we need to prohibit the publication of sensitive photos of individuals without their consent because we cannot rely on people having any sense of good taste or ethics?

      Maybe I need more coffee….

      1. SHG Post author

        I don’t think he was speaking to the images here, but rather to the argument by revenge porn advocates that the images they seek to criminalize have no First Amendment value. As appears in this post, the art world further complicates their simplistic approach.

  4. Nowan Uno

    Many problems here. First quality isn’t a prerequisite to meeting the definition for what is and what is not art. Having a message is. That is what qualifies it as speech and affords it first amendment protection. There is plenty of crap art in the world.

    Second, it may sound pedantic but, words matter. These images are not property and they were not stolen. They are information that was copied and released into the public. Using loaded terms like “stolen property” that do not accurately describe what actually occurred then in the same piece claiming that someone else is capitalizing on it to push their agenda is really quite hypocritical. At what point does expressing your perspective, become pushing your agenda?

    The fact that the information, right or wrong,has been released cannot be undone. Pretending that it can is a fool’s errand. All you can do is use it to have a healthy debate about the important issues raised by the release. Art is an important and powerful tool for that.

    1. SHG Post author

      I agree that quality isn’t a prerequisite to art. Then again, neither is uttering the word art as if it’s some magic incantation that makes anything and everything above reproach.

      As to words mattering, indeed they do. These images are definitely property, and they are most assuredly stolen. These are legal terms, not whatever you dream up in your head about what they should or shouldn’t be. Words have actual meaning, and it’s not up to you or me to make up our own personal meaning because that’s what they mean to us.

      And finally, as to your “cannot be undone,” it can most assuredly be the subject of criminal prosecution, civil damages and injunctive relief. Your vague and confused notions about law do not mean that the problem just disappears in a cloud of ignorance, we all shrug helplessly and it’s now fodder for artists to do with as they please.

      While the bell once rung cannot be unrung, that doesn’t mean that it’s thereafter fine to ring the bell whenever you feel like it because it’s what you feel like doing. Artists may be protected by the First Amendment (as are the rest of us), but that doesn’t mean artists are otherwise immune from the law.

      I understand you aren’t a lawyer, but you’ve grossly oversimplified difficult and complicated issues because you don’t understand them.

      1. Nowan Uno

        First, I didn’t merely label this as art. I supported the assertion by defining what constitutes art and why this example qualifies. Second, oh exactly does this qualify as property when it lacks key characteristics of real property? This is not tangible. It is also not scarce. Perhaps an individual copy could be property, but that was not stolen, merely copied. Theft requires deprivation. The proper word here is infringement.

        1. SHG Post author

          As already said, you don’t get to make up your own definitions of words. It’s property. It was stolen. I’m not here to teach Property Law 101 to people who manufacture their own ideas of the law, and you don’t get to post comments here that make people stupider because it’s what you think the law should be.

      2. Nowan Uno

        My point about it not being able to be undone is similar to the government pretending that classified information released to the public can still be a secret. It’s silly. Was their privacy infringed upon? Yes. Is that a crime. Yes. Should it be a crime and should those responsible for it be prosecuted? Yes and yes. Are those who use the information released by that crime to further discussions and make powerful statements on the issues related to it guilty of the same thing? I don’t think so.

        1. SHG Post author

          No, it’s not similar. The government doesn’t have rights. There is absolutely nothing similar about it.

          The fact that you are incapable of grasping the significant distinctions between unrelated legal concepts and distinguishing between differing fact patterns does not mean you get to arrive at absurd conclusions. Wouldn’t it be far more beneficial if you tried to understand why your ideas make no sense then to persist in pressing your arguments?

          I’ve given you a lot of latitude here to comment, and you’ve written quite a bit. Your comments have all been monumentally ignorant, demonstrating conclusively that you have no understanding of any of this. Sorry it this hurts your feelings, but

          If you want to continue arguing your views of the law, do it elsewhere. SJ is for knowledgeable, thoughtful discussion, not nonsensical drivel. You’ve done enough damage here.

    2. Beth Clarkson

      The fact that the information, right or wrong,has been released cannot be undone. Pretending that it can is a fool’s errand. All you can do is use it to have a healthy debate about the important issues raised by the release. Art is an important and powerful tool for that.

      I agree with this, but SHG also makes a good point in that the activity can be criminalized and penalties attached to discourage the behavior. It does strike me as being very similar to the type of photos that have been appearing in tabloids for decades though. The big difference being that the photos were taken by people spying on them with telephoto lens, so the people who hacked them originally are clearly guilty of some crime.

      I’m not so sure about the artist. Once information has been released, what is a reasonable societal response to people who then access the stolen information? Does the content matter? Assuming both were caught and convicted, should Edward Snowden suffer harsher or more lenient punishment that the nude celebrity photo hacker?

      1. SHG Post author

        This is the sort of comment that makes me think that non-lawyer comments shouldn’t be allowed here. Like Nowan, you’ve muddled a bunch of unrelated concepts and easily distinguishable factual scenarios. While there may be superficial similarities, the legal distinctions are obvious. Let’s not go down this road. This is a law blog, not reddit.

  5. Fubar

    From The Anartist’s Cookbook, recipe #47, Silken Sow’s Ear Soup:

    Make great art from infections of warbles:
    Stir one crusading lawyer who garbles
    Mere prudence with blame
    (The victim to shame).
    Tacky photos become Elgin Marbles!

  6. Wheeze the People™

    She said “turd”. hehehe . . . He said “turd” hehehe . . .

    With all apologies to The Trashmen and their 1963 hit song, “Surfin’ Bird” . . .

    A-well-a, everybody’s heard about the turd
    Turd, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, the turd is the word
    A-well-a, turd, turd, turd, well, the turd is the word
    A-well-a, turd, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, well, the turd is the word
    A-well-a, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, well, the turd is the word
    A-well-a, turd, turd, t-turd’s the word
    A-well-a, don’t you know about the turd
    Well, everybody knows that the turd is the word
    A-well-a, turd, turd, t-turd’s the word
    A-well-a

    A-well-a, everybody’s heard about the turd
    Turd, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, t-turd’s the word
    A-well-a, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, t-turd’s the word
    A-well-a, turd, turd, turd, t-turd’s the word
    A-well-a, don’t you know about the turd
    Well, everybody’s talking about the turd
    A-well-a, turd, turd, t-turd’s the word
    A-well-a, turd

    Surfin’ turd
    Bbbbbbbbbbbbbbbbbb, aaah
    Pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa
    Pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-pa-ooma-mow-mow
    Papa-ooma-mow-mow

    Papa-ooma-mow-mow, papa-ooma-mow-mow
    Papa-ooma-mow-mow, papa-ooma-mow-mow
    Ooma-mow-mow, papa-ooma-mow-mow
    Papa-ooma-mow-mow, papa-ooma-mow-mow
    Papa-ooma-mow-mow, papa-ooma-mow-mow
    Oom-oom-oom-oom-ooma-mow-mow
    Papa-ooma-mow-mow, papa-oom-oom-oom
    Oom-ooma-mow-mow, papa-ooma-mow-mow
    Ooma-mow-mow, papa-ooma-mow-mow
    Papa-a-mow-mow, papa-ooma-mow-mow
    Papa-ooma-mow-mow, ooma-mow-mow
    Papa-ooma-mow-mow, ooma-mow-mow
    Papa-oom-oom-oom-oom-ooma-mow-mow
    Oom-oom-oom-oom-ooma-mow-mow
    Ooma-mow-mow, papa-ooma-mow-mow
    Papa-ooma-mow-mow, ooma-mow-mow
    Well, don’t you know about the turd
    Well, everybody knows that the turd is the word
    A-well-a, turd, turd, t-turd’s the word

    Papa-ooma-mow-mow, papa-ooma-mow-mow
    Papa-ooma-mow-mow, papa-ooma-mow-mow
    Papa-ooma-mow-mow, papa-ooma-mow-mow . . .

    1. SHG Post author

      Tell me about it. I generally try to allow non-lawyer to post comments, but they just can’t make up stuff because it seems like that’s what they think the law ought to be. I realize it’s not always easy to understand complex or nuanced legal issues, but the persistence in arguments that are absolutely wrong really has no place here and just makes people stupider.

      It would be one thing for non-lawyers to ask, but to tenaciously argue out of basic ignorance is, indeed, like a train wreck.

  7. Dragoness Eclectic

    I am amused by the little math test before I can post. At least you don’t go full Heinlein and require me to solve a quadratic equation.

    Still not a lawyer, so I must ask: why is copyright infringment not an issue here? If I were to approach a publisher with a proposal for a coffee-table art book of images that were downloaded from the internet without the original artist’s or photographers explicit (and written release) permission to use them, I would not get very far. Why does this artist and gallery act as if knowingly (and presumably for a profit) infringing on someone else’s copyright is perfectly a-okay? What about “right of publicity”? Aren’t they opening themselves up to all kinds of interesting legal liability?

    As I am not a lawyer, I apologize if my questions are misinformed and ignorant, but consider me to be coming from the point of view of an ordinary citizen who sees someone else doing something incredibly questionable and wonders “hey, isn’t there a law against that? If there is, why are they comitting a crime in public?”

    1. SHG Post author

      The math test keeps out the bots. I get quite a few. As for copyright, it’s not that it doesn’t apply, but that there is a fair use exception that would apply. More importantly, this is a blog about the law for lawyers, not a blog to spend my time answer questions about irrelevant issues for curious non-lawyers.

      Isn’t it enough that I write these posts that others get to read? Must I also spend my time answering question by explaining basics to non-lawyers because they’re interested and have an irrelevant question? I get a lot of them, though not nearly as many as bots. Neither is really much fun for me. And the only reason this blog exists is to be fun for me.

        1. william doriss

          You’re not a lawyer; you said it once. Why say it again? You are probably better off, trust me! No sleepless nights, no nitemares, no niteterrors, sweaty palms, shaking wrists. facial twitches or tics, anguished looks, cracking voice, frumpy clothes, spaghetti-stained tie, tousled hair, etc. You really think it’s easy being sleazy?
          Hey look, you have a catchy “handle”. Anyone who calls herself Dragoness Eclectic cannot be all that bad? No, I’m not being sexist, I’m being honest! (Hey, I’m eclectic too, maybe we could get together?) So here’s the deal: It looks as if you might be new here.? SHG is the “Host” with the Most. Kinda like a male Joan Rivers, only NOT a comedian. No, no, no, not on this forum. This here is serious legal and law busyness. So you gotta get with the program, or you get bushwhacked, decimated, humiliated, intimidated, inundated, sent to the woodshed and so forth. Sex, race, religion and political affiliations are all irrelevant. It’s called “Initiation-by-Fire”. You show up from Oshkosh, you’re an unknown entity. You might be a “terrorist”, or godforbid, an internet “troll”. Well, you gotta get tested; you gotta pay your dues. After all, this is how we do it in The Empire State,… which is not the Show-Me State. Here, we “show you” [who is the Boss!]. So do not be sorry, be safe! Take precautions, and keep trying. No harm in trying.
          How do we get to Carnegie Hall? Practice, practice, practice!
          This column is noteworthy for the simple reason that two or three above you already got taken to the cleaners, possibly a record. So here’s my advice: Give it rest, and feel free to come back for more punishment at a later date.
          You’d be surprised at how charitable SHG can actually be,…once He gets to know You. Try it, don’t give up the ship. You got your foot in the door somehow. That is the first step toward a long and lasting “relationship” with SJ. Ha. “His bark is worse than his bite.”
          5 x 6 =30. What is so hard about that?

          1. SHG Post author

            Stop giving it all away, Bill. You know as well as anybody that new commenters can either become a contributing voice or a monumental pain in the ass, sucking up time with dopey reddit questions or getting into arguments over nonsensical tangential crap.

            If I wasn’t nice, would I let you comment? I already let way too many non-lawyers comment, and the quality of comments lately has been awful. But without it, this place would be a sewer and the people whose voices and ideas contribute to my happiness would run like hell away.

            1. william doriss

              You said that six months ago, and still saying it. Guess you have to repeat yourself for the newcomers. I like bad comments and collect bad art, primitive art, student art, weird art and “found art”–anything you won’t find in a museum or on Madison Ave. Bad is the new Good. Ha.
              Mad, glad, bad, sad is my motto, depending,… On some forums, the comments section is more entertaining than the posted text. Sometimes I read the comments first in order to determine if I even want to read the text. That is called “entering thru the back door”.
              Ha, ha. Dragoness will be back, I predict. (Carl David Ceder is MIA, thank god. He was the best in the West?!? See what I mean?)
              3 + four = 7. All the best. Have a nice day, as they say in Oshkosh.
              Some of your postings are best read twice before even thinking about commenting. OK, I stop now.

            2. SHG Post author

              Every day, someone new stumbles upon this place and decides to school me (us) on how it should be done. So yes, it gets repeated with some regularity. If you find it tedious, imagine how I find it.

              And if I catch you reading the comments to decide if you want to bother with my post, I will call you bad names. I’m not kidding.

Comments are closed.