During an inadvertent foray onto TMZ’s website, I came across this bit of fun a few months ago:

DO NOT Photoshop Megan Fox’s naked face on another chick’s naked body … and then publish it online … because she will sue the crap out of you — at least that’s the threat she sent to one website this week.

Megan’s legal team fired off the cease and desist letter to a parody website called Celebrity Jihad — after the site published a shockingly good Photoshopped pic last week, depicting Megan’s face on a naked chick’s body.

I’d be curious to hear a fair use argument for the doctored photo, but copyright law does not seem to enter into the discussion here. It’s hard to know what legal arguments were raised, because all the coverage comes from mouth-breathing websites like TMZ and Perez Hilton. Anyway, the website that posted the pictures was not nearly terribly clever in its reply:

A rep for Celebrity Jihad tells TMZ … “While we appreciate Megan Fox’s concern for her image, we find it hard to believe that a woman who spent two Transformers movies bent over with her breasts pressed together could have her reputation damaged by a blatantly satirical website.”

See, Megan Fox slutted it up in two Michael Bay movies, so how could she complain about some hack website sticking her face on someone else’s naked body, amirite??? (That’s my interpretation of their argument, anyway.)

(If you want to see the picture, you’ll have to Google it yourself. I already feel bad enough for linking to TMZ, although I tagged it “nofollow.”)

This does bring up interesting questions about likeness rights, right of publicity, and so forth. Whoever owns the copyright on the picture or pictures they doctored would likely have a stronger infringement case. I suspect, although one can never derive anything of intellectual value from TMZ, that Fox’s lawyers are pursuing something more along the lines of defamation or right of publicity. I can think of several questions to which I do not know the answers:

1. If the photo really is “obviously fake,” is there any defamation or violation of a right of privacy? That leads directly to a second question…
2. If the photo is not obviously fake, what sort of rights might be infringed, and what damages might Fox suffer? She might have a claim for likeness rights if she did not give the original copyright owner a general release, but again, what claims might she have against a Photoshopper?
3. Giving momentary credence to the Celebrity Jihad spokesperson’s troglodytic legal theory, does Fox’s history of provocative performances on film somehow waive any right she might have in regards to doctored nude photos?

I suspect that she would have a plausible claim for defamation, but not necessarily. She would have to contend with being a public figure, unlike non-famous people who might experience something similar.

A local news reporter in Tennessee sued the website TheDirty.com for posting allegedly fake nude photos of her in 2011. The photos were submitted by users, but the website’s administrator apparently added his own commentary. The plaintiff asserted nine causes of acton, including defamation, false light invasion of privacy, name and likeness misappropriation, and invasion of privacy. A court denied her request for an injunction, which she had sought based on her publicity rights claim. Gauck v. Karamian, et al, No. 2:11-cv-02346, order (W.D. Tenn., Jul. 29, 2011) (PACER registration required).  It noted that many of her claims fell within exclusions found in the Communications Decency Act (CDA) at 47 U.S.C. § 230. It also found that her claim depended on her claim depended on proof that the website used her likeness  for direct financial benefit, and that she failed to produce sufficient evidence:

In her complaint and briefs, Plaintiff has suggested, at most, a currently unsubstantiated connection between the general use of celebrity personas on the site and an increase in traffic and/or advertising revenue. Plaintiff states that “those posts pertaining to celebrities’ personal lives are more valuable than those pertaining to an average person’s because of their potential to draw a wider audience to [TheDirty.com].” (Pl.’s Reply 14.)…Plaintiff’s speculative assertions regarding Defendants’ advertising revenues are insufficient to meet Plaintiff’s burden of demonstrating that she is entitled to injunctive relief.

Id. at 15-16.

Elin Nordegren, known to most as Tiger Woods’ ex-wife, had better luck in Ireland, where the First Amendment does not protect obviously-false speech. Note that libel law in Europe is pretty hit-or-miss, and that I think it misses far more often than it hits. She sued the publisher of The Dubliner in an Irish court in 2006 for publishing a fake nude photo of her, along with an article she found offensive. The court ruled in her favor in December 2007, awarding her $183,250 and ordering the defendant to apologize. I’ll take the First Amendment, thanks.

Nothing seems to have happened (or at least hasn’t been reported) the Fox story since it began in late October 2012, so I’m assuming there has not been an actual lawsuit that might answer some of these questions. Given that software gives people who know what they are doing the ability to alter photos quite convincingly, and that some people use these skills to create fake nude pictures of celebrities, it may only be a matter of time before an epic legal battle ensues. The case bears some similarity to cases of leaked nude photos that are real, which can lead to threats of lawsuits and actual lawsuits from famous and non-famous people alike.

Photo credit: Banksy v Picasso Bad artists imitate Great artists steal by ahisgett [CC BY 2.0], on Flickr.