As I mentioned, there are many kinds of torts, and they don’t all involve death, injury, or disgrace. The band Vampire Weekend is a defendant in this suit over their use of a fairly random Polaroid from 1983 on their album Contra.
It is an interesting lawsuit – perhaps more like the old fashioned sorts of torts dealing with reputational harms (who knows, maybe she really hates Vampire Weekend and doesn’t want to be associated with them) than modern negligence torts. Of course, to some people it seems like poetic justice for a band to be sued for stealing someone’s image given the way the way the RIAA treats file sharers like they were stealing social security checks from little old ladies. On the other hand, how do we assess damages in a case like this? Absent the lawsuit, would anyone even know what name to associate with this picture? What is the value to a non-famous person of their image, especially a 27 year old image, and how much control should we have over representations of our image? How does one come to “name” this injury? In this instance, blaming and claiming initially look pretty simple (the name of the band is right there on the album!) but does the claim properly go against the band, the record label, or the photographer with the allegedly forged model release?
There have also been a number of similar lawsuits involving people who have had their pictures copied from their Flickr page and used in advertising without their permission or compensation. Some argue that this is just the way things are now and that we should get used to the fact that we have lost control of our own image. For instance, Facebook has claimed the unlimited right to use pictures you post on your profile or in albums for any purpose that they want (read the fine print in the terms of service). Will the tort system prove to be an effective way of maintaining control over our privacy and use of our likeness in the digital age, will there be other alternative ways to address reputational harms or misappropriation, or are we simply stuck with technology that negates any hope of individual control?
I would argue that torts like this one will be part of a legal system of control over our images and information in the digital age. But regulation could also play a role since most people will not be in a position to secure legal representation in these kinds of cases. The contingency fee from a settlement in this case may be quite large, but in a case where a sucky band misappropriates my image there won’t be enough incentive for a lawyer to take my case. Photographers are starting to use technology to try to protect their copyrights such as embedded watermarks and other codes that allow them to track down copyright infringements on-line at low cost and pursue copyright claims. I can imagine that we might do something similar, either with pictures of ourselves that we post to Facebook and Flickr, or through some sort of mapping of our facial features that can then be used to search the internet. One day maybe we can google our own faces rather than our names and track down the misappropriators ourselves.