On Wednesday, New York’s Daily News had a Kim Kardashian moment, nearly breaking the Internet by posting a series of nude Justin Bieber photos. These were a far cry from the bare-bum or strategically-placed-guitar pics Bieber himself has posted on Instagram, though. This time, a photographer snapped pictures of Bieber with a telephoto lens (and without the pop star’s knowledge) while he was vacationing in Bora Bora.
So is that legal? Bieber’s attorneys don’t think so, sending a cease-and-desist letter to the Daily News arguing that the singer owns the rights to his likeness and did not authorize the photos’ publication.
Billboard spoke with two California-based legal experts — Peter T. Haven and criminal defense attorney Mike Cavalluzzi — to see if they agree with the Bieber team’s approach and whether the photos are even legal in the first place.
“Justin Bieber is what you generally refer to as a public figure, and when people are in plain view or public view, they’re exposing themselves to the world, and anyone can take a picture of you when you’re standing out in public view,” Haven tells Billboard. “In my opinion, given the fact that he’s a public figure, given the fact that he was in plain view or view that was accessible to the public, this just goes with the territory.”
Bieber was on vacation with model Jayde Pierce when the two were photographed lying around the residence nude. While Bieber and Pierce were in the photographer’s view, did they have an expectation of privacy since they were at a private residence, or at least a secluded property?
“The right to publish is going to hinge on whether [the photos] are newsworthy, and it’s very, very interesting because obviously anything about Justin Bieber is newsworthy,” Cavalluzzi explains. “When you determine the newsworthiness of something, it doesn’t have to be serious news. It doesn’t have to be educational news. It merely has to be a matter that engages the public interest. Justin Bieber has placed himself into the public eye. He is constantly posting sexy images of himself on Twitter and on social media, which clearly shows that he is using his sexuality to engage the public. That’s what the attorneys for anyone who has the photograph would argue. He’s a public figure, he’s made his sexuality a part of his fame … and therefore the fact these go a step further are fair game.
“The other side would argue that a person’s private parts are something that only they can choose to show to the public and that this is the truest form of invasion to privacy because if Justin Bieber wants to show his penis, he should be the only person who owns that right to show his penis.”
For the legal steps the singer could take, Haven suggests Bieber could claim he was hurt or humiliated by the photos — however, “I personally don’t think much of any of those claims,” he says, adding, “but the courthouses are generally open five days a week, and anybody can file a lawsuit if they want.”
Cavalluzzi agrees there isn’t much legal recourse, saying Bieber has had a long, beneficial relationship with the media that should be expected to come with consequences. “People like Justin Bieber, and all famous people, benefit, pretty much, from having their images show up consistently in magazines. … So they can’t have it both ways. They can’t say, ‘Show all these images of me that I love and keep me famous and in the public eye and in turn make me lots of money,’ but then if you’re selling this image that I don’t like, all of a sudden, I can enjoin you by filing an injunction preventing you from using it.”
A lot of comparisons have been made between the Bieber photos and last year’s celebrity nude photo leak, but Haven says that isn’t an apt analogy. “If you have these photos contained in some protected account and somebody hacks into it, they’ve basically broken into something, taken something of value from you and something [where] you had an expectation of privacy,” he says. “So if you can find out who did it, yes, I think you have a civil litigation claim against them.”
It’s a different legal scenario depending on how the photos are obtained, but how does their use change the legality? Cavalluzzi distinguishes between newsworthy use and commercial use. “Every celebrity owns a right to publicity. They own the right to many of their images being sold in a commercial way. Is this sold to be used on a news site? Justin Bieber will most likely be paid nothing. If, on the other hand, it is made into a thousand posters, then Justin Bieber can absolutely stop that from happening by filing an injunction or is entitled to get paid for that because that is commercial use of the image and not news use of the image.” For example, “Just because TMZ generates revenue does not mean that that constitutes commercial use of the picture. A commercial use would be if TMZ said, ‘We’re gonna take this picture and we’re gonna market it, and if you wanna buy our original picture that we maintain at TMZ, TMZ will send you copies of the picture.’ That, then, is profiting from the image itself and not simply using it to express newsworthy information.”
Aside from the cease-and-desist, Bieber and his camp have stayed silent about the nude photos so far, not offering any public statement or reaction. What would Haven advise as Bieber’s next step?
“I really don’t think there’s anything that they can do,” he says. “Once something becomes part of the public domain, it’s kind of like letting the genie out of the bottle: You just can’t put it back in. You can write letters, you can request that people take down the posting, you can request that certain agencies and entities not use them, but I’m not sure if there’s any real legal recourse against anyone who displays these photos after they’ve been publicly disseminated. I just think it’s the case of the genie’s out of the bottle.”