Can Marcia Cross Sue to Keep the Nude Photos of the "Desperate Housewife" Out of the Public Eye? A Case of Infringement or Entrepreneurship?

By CECILY DEANE MAK

Friday, Nov. 10, 2006

Talk about desperate. It just so happens that Marcia Cross had a lapse of judgment and threw a bundle of nude photos of herself in the trash recently. And as soon as an employee of the hauler discovered the goods, he didn't waste any time hiring celebrity-smut peddler David Hans Schmidt to sell the shots to the highest bidder.

Unsurprisingly, Ms. Cross and her husband, Tom Mahoney, got their attorneys involved and are trying to stop her most revealing debut yet, by threatening legal claims.

What Cross was doing with 200 nude photos of herself, we may never know; why they "accidentally" ended up in her trash is even more of a mystery. At the moment, her primary concern is whether she'll be able to keep them out of the public eye.

The legal issue will turn on whether the couple has either personal or intellectual property rights in the photos; if they don't, Schmidt can sell them to the highest bidder.


Unfortunately, they lack personal property rights and their case for copyright infringement is riddled with hurdles -- so their best bet is to buy the shots back at the seller's price.

Does the Couple Have Personal Property Rights to Their Trash?

First, let's consider the couple's claim that the photos remain their personal property. California law (like federal law, and the law of most other states) holds that a person has no reasonable expectation of privacy for contents of garbage left for the taking. Even when it is still sitting in trash cans or opaque plastic bags at the person's home, awaiting collection, any property rights in its contents are held to have already been relinquished.

This exact issue was addressed by the U.S. Supreme Court in 1988, in the case of California v. Greenwood. In Greenwood, the Court held in favor of a tabloid reporter who took several bags of trash from Secretary of State Henry Kissinger, inventoried the contents, and published his findings.

The reporter, the Court held, was not liable for invasion of privacy because Kissinger had no rights in the physical property found in his trash, even if it was accidentally discarded. The same is true of Cross and Mahoney.

Does the Couple Own Copyrights in the Images?

What about a copyright infringement claim? The general rule is that the author - here, the photographer -- is the owner of the copyright. Here, the photographer might be Cross herself (if she used a camera with a timer), her husband, or some third party (such as an ex-boyfriend, or if they were modeling shots, a professional). If it's a third party, that person would have to be the one to sue - unless the copyrights are assigned to Cross or Mahoney.

Moreover, even if Cross or Mahoney did take the photos, and hold the copyrights in them, there is a hurdle. Although copyright attaches to creative works as soon as the work is complete, before filing suit to enforce it, the copyright holder must register the copyright with the U.S. Copyright Office in D.C. - accompanied by a copy of the work. But Cross and Mahoney may not have copies of the photos to attach.

The Best Strategy for the Couple's Lawyers: Negotiate Rates, Don't Threaten Suit

In the end, given these complications, the couple's best bet is simply to get their checkbook out. Schmidt and his client probably just want to make a quick buck, whether from a tabloid or the wealthy couple. At least Cross and Mahoney can afford it.


Cecily Deane Mak is Senior Counsel, Music at RealNetworks, Inc. where she supports RealNetworks' Rhapsody music subscription service. She is a frequent public speaker and writer on a range of topics including music rights, online media and entertainment law matters.

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