Streisanding: on Creepshots, Gender Politics, and the Law, Part 1

Yesterday I learned a new word, via the invaluable efforts of internet archaeologist Katie Notopolous: “streisanding.” The verbification of Barbra is apparently several years old: Streisand’s attempts to prevent photos of her home from being published resulted in the widespread dissemination of photos of her home. Since then, “to streisand” has meant to invite the violation of one’s privacy by going overboard in attempts to protect it.

Worries about “streisanding” were all over the conversation thread unearthed yesterday by Notopolous: a chat among the overlords of Reddit, that sad graveyard of human desire, about how they might preserve their anonymity in the face of a series of exposés published at the Gawker/Jezebel media hub. The crisis at Reddit became, for the site’s loyalists, a full-scale catastrophe yesterday, as Adrian Chen’s detailed article on Reddit’s chief scumbag went live. Zunguzungu and Excremental Virtue penned excellent responses to the Chen story. They present nuanced and ethical responses to the Reddit affair. I had some other thoughts, though, of a more historical and theoretical nature, that I thought I might put into words.

What has been “streisanded” in the aftermath of Chen’s article is the identity of an anonymous Reddit troll (and, potentially, the identities of others), responsible for overseeing the site’s repository of “creepshots”: photos surreptitiously snapped of unsuspecting mostly young (and, apparently, sometimes extremely young) women. I do not know the terminology well enough to know if “creepshots” also technically includes photos sourced from Facebook profiles and other semi-private online spaces, but I will use the term indiscriminately because it captures the boundary-violating, vicarious thrill-seeking, and scummy aspirational deviance characteristic of the Reddit enthusiasts who have stood up to castigate Gawker and defend the megatroll who went by the name Violentacrez.

The “creepshots” phenomenon interests me for a variety of reasons, outside of my modest desire to stay informed about current events, and my semi-involuntary impulse to track the mutations of male nerd culture in the direction of neo-fascism (see, for example, the increasingly Golden Dawn-esque behavior of ultra-libertarian “comedy nerds” and hatemouthed video game geeks) . The most significant point of interest for me is that I am working on a dissertation that connects the labor history of cultural workers and the legal history of the idea of intellectual property (IP). This research has led me to study the legal doctrine of “publicity rights,” a less well known (because less economically significant) subspecies of IP than copyright, patent, and trademark, but an increasingly relevant one in the age of smartphones, expansive surveillance of public space, and the monetization of everyday life by social networking and content-aggregating websites. If there is a relevant legal doctrine against which to read the permissibility of Reddit threads like the infamous “creepshots,” “publicity rights” may well be it.

Thinking about the Reddit case brings the work of Jane Gaines to mind. In Contested Culture, Gaines provides an extended genealogy of contemporary battles over the ownership of personas, biographical narratives, and celebrity images. Gaines’s work helps us to properly situate debates–like the one generated by Chen’s article–about how we might conceive of reasonable limits of anonymity in online personas and how to think about ordinary citizens’ rights vis-a-vis photographic representations of their likenesses (whether captured in public of posted online): limits which have differed considerably depending upon the given subject’s status as celebrity or a commoner, man or a woman, artist or artist’s model, child or adult. Gaines is especially helpful in reminding us that “publicity rights” emerged, via a bizarre and tortured process, from a conception of “privacy” rights unique to US tort law. As “publicity” and “privacy” are very much the key terms of the Violentacrez debacle, it seems useful to review Gaines’s reconstruction of this strange chapter of legal and cultural history.

Contested Culture announces at the outset its intention to read Melvin Nimmer (author of the most influential treatise on US copyright, and a powerful midcentury Hollywood lawyer and law school professor) with Bernard Edelman (the French Marxist legal theorist who wrote an important, if under-read, Althusserian critique of IP law in the 1970s, The Ownership of the Image). Gaines works through a variety of precedent-setting IP cases from the 1880s to the 1980s, repurposing the legal record as a rich archive for applied cultural studies.

Drawing on Stuart Hall’s notion of popular culture’s “double movement,” Gaines paints the history of “publicity rights” as a potent example of the way that law is shaped by the clash between abstract legal values and the “imperatives of industrial production,” as the two ultimately get resolved in the thoughts and words of judges. “In the period from 1930 to 1970,” Gaines writes, “and especially in cases involving the commercial appropriation of celebrity images, judges espoused the traditional value that a famous person had freely chosen to live in the public eye and that therefore he or she could not object to the consequent invasion of privacy.” Celebrities whose images were splashed across the pages of tabloids, in other words, had “asked for it.” Gradually, however, this adherence to a “privacy rights” arguments gave way to an economic argument, as increasing numbers of judges were convinced that “since advertisers paid the famous for the use of their images, there might be a property right involved” (13).

As was often the case, Justice Oliver Wendell Holmes, Jr. anticipated the legal future, predicting a turn from “privacy” to “publicity rights.” In the case of O’Brien v. Pabst Sales Co. (1941), Holmes dissented from the majority opinion, which held that a well-known football player could not complain when his photograph appeared in a Pabst beer advertisement. Holmes argued that as advertisers were “undoubtedly in the habit of buying the right to use one’s name or picture to create demand and good will for their merchandise,” the common law might accommodate the new right of the individual to a portion of the profits generated by such usage (13). Holmes’s dissent was a pivotal event in the evolution of public consciousness and perception. Over time, Holmes’s adumbration of a radical new slate of property rights connected to the commercial exploitation of one’s image would come to seem as an uncontroversial detail in the common understanding of a US citizen’s legally protected rights and entitlements.

As the new “publicity right” began to emerge in legal dissents, the culture industry was consolidating several decades of experimentation with “star”-centered entertainment sectors, the most significant of which was the Hollywood studio system and its stable of matinee idols. Drawing on Danae Clark’s work in the direction of a “labor theory of stardom,” Gaines writes:

“Body and voice (those apparent biological ‘givens’) are not entirely produced by the labor of the actor as performer; they are also mechanically and electronically ‘captured’ (as photograph and sound recording) by the labor of technicians. And under the studio system, the natural signs of the private person were produced as popular audio and visual images by the collective labor of many others as well–-agents, publicists, voice, coaches, lighting directors, makeup artists, and costume designers, as well as directors. In short, the transformation of the physiognomy and psyche of a human being by the process of industrial production for the purposes of cornering a market has no equivalent at any other moment in history, nor can manufactured stardom be found in any other society before its appearance in the U.S. (36)

Gaines looks to Richard DeCordova’s research, which emphasizes the commercial importance of the World War I-era merger of two components of “stardom”–the professional aspect of the “picture personality” and the “private life” of the actor–to frame the complex origins of modern “publicity rights” (37). The rise of sound films in the 1930s, and the parallel advent of magazines like Photoplay, initiated an intensification of merchandising and cross-promotion with celebrity actors at the center of a powerful commercial machine (38-39). As Charlie Chaplin pencil sharpeners and Bela Lugosi toothbrushes started to generate serious profits, “negative” privacy rights–the right to be left alone, the right to be free from the anguish caused by unwanted exposure–began to be transformed into the core elements of a rationale for “positive’ publicity rights–the right to exploit one’s unique personality for monetary profit.

As with most of the arms of the culture industry, IP rights in Hollywood were engineered to devolve to the producer; the fiction of “corporate authorship” (and the corollary labor regime of “work-f0r-hire”) has consistently served as a nearly foolproof legal device by which the traditional Lockean, Kantian, and Hegelian rationales for the inalienable rights of creators and authors could be circumvented without appearing as a radical usurpation of cultural workers’ rights. Thus, in the 1930s, the answer to Edelman’s question “who owns the image?”–when asked in reference to photographic representations of film actors– could almost always be answered: the studio. A Humphrey Bogart or Bette Davis could not hope to sue a studio for exploiting their photographic image in advertisements or the new field of commodity tie-ups (39).

If we pause for a moment–mid-story–to think about how this history speaks to the Reddit case, I think we can make some preliminary observations. The centrality of the “celebrity”/”ordinary person” distinction is clearly at work in the coverage of “creepshots”: we are now over a decade into a popular culture formation built on the normalization of outrageous invasions of celebrity privacy–sex tapes, hacked cellphone photos, websites devoted to celebrity “nip slips,” paparazzi magazines, Perez Hilton, etc. Celebrities, it seems, have returned to their status prior to the advent of “publicity rights”: they have “asked for it” by choosing lives in the public eye. The difference, of course, is that they now have a firm legal basis upon which to profit from the exploitation of their personas/images (although “corporate authorship” remains a barrier to such profit-sharing in many cases).

At the same time, the past decade has seen an extraordinary transformation of self-identity and self-presentation, especially among the young and technologically connected. Personality is increasingly conceived of as a form of “branding,” with one’s social media identity and amateur postings on sites like youtube treated as experiments in “pre-celebrity.” Interestingly enough, Gaines details the rise in the 1970s of precisely such a conception of “publicity rights”: in order to conform with the law’s understanding of property rights deriving from labor, judges began to see, in Warholian fashion, all ordinary people as “pre-celebrities,” some of whom would go on to develop their potential and thus earn the right to profit from their efforts. In the age of reality television and online celebrity, such reasoning has gone from baroque casuistry to common sense.

We cannot ignore the gendered dimension of this story: “creepshots” are deeply tied to the contemporary culture of pornography and the strategies whereby the blue chip corporations who control sites like Reddit sub-contract the work of stoking web-surfers’ desires (leading to the all-important clicks). The internet, in the era of broadband, has generated an extraordinarily contradictory conjugation of visuality, self-display, and arousal. Against the background of endless moral panics about teen sexuality (whether in the form of an online pornography-inspired preteen libidinal tsunami or an epidemic of compulsive sexting and disrobing), and parallel to the advent of an alienated and disfigured hypercapitalist ideology of sexuality (as can be seen most laughably, and terrifyingly, in the writings of Tucker Max and Neil Strauss), “creepshots” can be seen as a return of the repressed–the toxic sludge that spills out, as from the guts of a monster in a Studio Ghibli film, as the inevitable consequence of too much denial and rationalization– and a logical outgrowth of the indeterminacy surrounding the separation of “public” and “private,” “licit” and “illicit,” repetition and difference.