FacebookTwitterGoogle+RedditEmail

A Photographer, an Offer and Topless Photos of Cameron Diaz

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.

More articles by:
August 20, 2018
Carl Boggs
The Road to Disaster?
James Munson
“Not With a Bomb, But a Whimper” … Then More Bombs.
Jonathan Cook
Corbyn’s Labour Party is Being Made to Fail –By Design
Robert Fisk
A US Trade War With Turkey Over a Pastor? Don’t Believe It
Howard Lisnoff
The Mass Media’s Outrage at Trump: Why the Surprise?
Faisal Khan
A British Muslim’s Perspective on the Burkha Debate
Andrew Kahn
Inhumanity Above the Clouds
Dan Glazebrook
Trump’s New Financial War on the Global South
George Wuerthner
Why the Gallatin Range Deserves Protection
Ted Rall
Is Trump a Brand-New Weird Existential Threat? No.
Sheldon Richman
For the Love of Reason
Susie Day
Why Pundits Scare Me
Dean Baker
Does France’s Economy Need to Be Renewed?
Weekend Edition
August 17, 2018
Friday - Sunday
Daniel Wolff
The Aretha Dialogue
Nick Pemberton
Donald Trump and the Rise of Patriotism 
Joseph Natoli
First Amendment Rights and the Court of Popular Opinion
Andrew Levine
Midterms 2018: What’s There to Hope For?
Robert Hunziker
Hothouse Earth
Jeffrey St. Clair
Roaming Charges: Running Out of Fools
Ajamu Baraka
Opposing Bipartisan Warmongering is Defending Human Rights of the Poor and Working Class
Paul Street
Corporate Media: the Enemy of the People
David Macaray
Trump and the Sex Tape
CJ Hopkins
Where Have All the Nazis Gone?
Daniel Falcone
The Future of NATO: an Interview With Richard Falk
Cesar Chelala
The Historic Responsibility of the Catholic Church
Ron Jacobs
The Barbarism of US Immigration Policy
Kenneth Surin
In Shanghai
William Camacaro - Frederick B. Mills
The Military Option Against Venezuela in the “Year of the Americas”
Nancy Kurshan
The Whole World Was Watching: Chicago ’68, Revisited
Robert Fantina
Yemeni and Palestinian Children
Alexandra Isfahani-Hammond
Orcas and Other-Than-Human Grief
Shoshana Fine – Thomas Lindemann
Migrants Deaths: European Democracies and the Right to Not Protect?
Paul Edwards
Totally Irrusianal
Thomas Knapp
Murphy’s Law: Big Tech Must Serve as Censorship Subcontractors
Mark Ashwill
More Demons Unleashed After Fulbright University Vietnam Official Drops Rhetorical Bombshells
Ralph Nader
Going Fundamental Eludes Congressional Progressives
Hans-Armin Ohlmann
My Longest Day: How World War II Ended for My Family
Matthew Funke
The Nordic Countries Aren’t Socialist
Daniel Warner
Tiger Woods, Donald Trump and Crime and Punishment
Dave Lindorff
Mainstream Media Hypocrisy on Display
Jeff Cohen
Democrats Gather in Chicago: Elite Party or Party of the People?
Victor Grossman
Stand Up With New Hope in Germany?
Christopher Brauchli
A Family Affair
Jill Richardson
Profiting From Poison
Patrick Bobilin
Moving the Margins
FacebookTwitterGoogle+RedditEmail