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A Photographer, an Offer and Topless Photos of Cameron Diaz

by JULIE HILDEN

Charlie’s Angels actress Cameron Diaz recently sought an injunction to stop a photographer, John Rutter, from trying to sell topless photographs and video footage of her. The photos and footage were taken when Diaz, now 30, was a 21-year-old model who had not yet gained fame as an actress.

Diaz has made two allegations about the photos. One is relatively simple: She claims that Rutter forged her signature on the release for the photos. If she’s correct, then Rutter is in trouble. Of course, he could still try to sell the photos, but he’d have a hard time doing so, for publishing the photos might expose the buyer to huge liability.

The other allegation is subtler: Both Diaz and Rutter agree that before he put her photos on the market, he had his lawyers approach her first to try to convince her to buy the photos himself. But they disagree on his motive. Rutter says he was trying to do Diaz a favor–giving her a chance to avoid exposure and embarrassment. But Diaz says that he, in essence, tried to strong-arm her into paying him, by threatening to expose her then-secret photos if she did not pay up.

Often–but not always–when a person threatens to disclose secret information unless money is paid, he or she has committed the crime of extortion.

Did Rutter commit extortion? To a large extent, the answer to that question will depend on facts that have yet to be made public. Nevertheless, even at this preliminary stage, California’s extortion statute suggests some possible answers.

Was the Photographer’s Offer Extortion, or Unappreciated Generosity?

According to California criminal law, extortion includes “the obtaining of property”–which includes money–“from another, with his consent . . . by a wrongful use of … fear….” The penalty is up to a year in prison, or up to a $10,000 fine, or both.

Rutter must likely have inspired “fear” in Diaz when he told her the photos were going to be published, with or without consent. And some observers might think this use of fear was wrongful, especially if there was no valid, signed release.

But what about the fact that Rutter never got the money he wanted from Diaz? That is not an impediment. Under another provision of California criminal law, extortion can still exist even if the property is not actually obtained–as long as a threatening letter, or other writing, seeking it is sent or delivered to the target of the extortion.

Reportedly, Rutter’s and Diaz’s lawyers had some communications; if they were in writing, as is usual with lawyers, then they might fit the statute. Thus, the fact that Diaz never paid Rutter would probably not be a defense to an extortion charge.

Does that mean Rutter is doomed to serve time? Not necessarily.

The Kind of Threats on Which Extortion Can Be Based

The key is that not every kind of fear counts as the basis for an extortion charge–the fear must be “induced by a threat,” and only certain kinds of threats qualify.

Moreover, of those kinds of threats, only a few seem to apply to the Rutter/Diaz situation. The threat could be “to expose, or to impute to [Diaz] any …disgrace,” or more simply, it could be “to expose any secret affecting [Diaz].”

It seems hard to argue, in this day and age, that posing for topless photos amounts to a “disgrace.” After all, Hollywood stars frequent the Playboy mansion, and some have even posed for such photos early in their careers.

Granted, Hollywood stars do seem to patrol a thin line between being seductive and actually being nude. But their right to draw that line is probably better enforced in the context of civil right to publicity claims, than in the context of the criminal law of extortion.

When Extortion Relates to a “Secret,” The Danger of Vagueness Arises

What about the other possible basis for extortion charges, besides “disgrace”–the contention that Rutter was threatening simply “to expose [a] secret” involving Diaz?

In my view, this possible basis for extortion charges–which encompasses even nondisgraceful secrets–is especially troubling, because it is so broad and vague. For one thing, when is information truly “secret”?

Suppose Diaz’s photos were an open secret among Hollywood insiders, but unknown to the general public. Could they be “secret,” although they might be known by hundreds of people? Or suppose a woman is trying to keep a foible–but not a disgraceful one–from her husband, but all her friends and family members know about it. Is that still a “secret”?

For reasons like these, there is a strong argument that extortion laws that–like California’s–extend even to nondisgraceful secrets might be unconstitutional. Vague laws violate the Due Process clause by failing to give notice as to what is, and is not, criminal.

There is also a particular problem with the use of this basis for extortion charges against Rutter in particular–which is that he did not seem primarily to be threatening to “expose a secret.” Rather, he was offering–or perhaps threatening–to sell Diaz’s photographs to others if she did not buy them.

Suppose Rutter had called Diaz and said, “If you don’t pay me, I’ll tell everyone you posed nude.” That would plainly be extortion, at least if virtually no one previously knew that fact.

But in fact, what seems to have happened is that his lawyers called her lawyers, and offered to sell her property that belonged to him. (The rights to, and the copyright on, a photograph typically belong to the photographer, whether or not a release has been signed.)

It would seem odd if trying to sell one’s own property privately–in the absence of fraud, a secured loan, or a prior crime such as theft of the property–could itself be a considered a crime.

Yet that may be the theory of the Los Angeles D.A.’s office, if it chooses to charge Rutter not only with forgery, but also with extortion.

In This Context, Civil Alternatives to An Extortion Charge May Be Sufficient

This analysis may worry readers who feel that Diaz’s position is a sympathetic one. But there’s no need to be concerned for her.

First, as long as her claim of forgery is true, Rutter will be punished. Under California law, “Every person who, with the intent to defraud, counterfeits or forges the seal or handwriting of another is guilty of forgery.”

Second, without a release, Rutter–despite his ownership of the photos and footage–could, as noted above, face a suit from Diaz under various theories. Among them are the right of privacy and the right of publicity–the right to control the commercial use of one’s image.

A plaintiff in a successful right of publicity case can recoup all the publisher’s profits. And that means it is a foolish publisher who ignores possible right of publicity claims, and proceeds without a release.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her forthcoming novel Three will be published in the U.S. in August 2003 by Plume Books, in the U.K. by Bantam, and in French translation by Actes Sud. This column originally appeared on Findlaw’s Writ.

She can be reached at: julhil@aol.com.

Julie’s new website is a lot of fun. Have a look.

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