This T-shirt means “If you take an
amusingly embarrassing picture or video of me, don’t put it on the Web without my permission.” With or without Photoshop embellishments. With or without
grammatically incorrect captions. The shirt is a creation of
R Stevens, the brain and funnybone behind the underground fave Diesel Sweeties web comic, among so many
other things that one wonders if he’s really just one person.
What this shirt is suggesting, to the legal eagle eye, is celebrity rights for the rest of us. The shirt has
no legislative or judicial backing – yet. But, just maybe, this idea’s time has come:
When people think of intellectual property, they think of patents, copyrights, and trademarks. Maybe trade secrets. But celebrity rights – basically the right to control the use of one’s name and likeness, though other things* can get under the umbrella if it rains hard enough – are another type of IP.
Celebrity rights can traditionally only be claimed by celebrities. Because their faces are their fortunes, the law holds that if someone, without their consent, associates them with something that damages their ability to make a living in their accustomed occupation, that someone owes the celebrity money. Possibly the money that the celebrity lost because of his or her distorted reputation. Possibly the money that the wrongdoer made without cutting the celebrity in on the deal. Possibly both plus punitive damages, if the offense was really egregious. There can be exceptions for parodies that no reasonable person would confuse with the truth, as Jerry Falwell learned to his teeth-gnashing frustration.
Just plain folks didn’t need this protection, judges and legislators felt, because their foibles aren’t likely to be widely publicized.
In many parts of the world, that isn’t true anymore. The ubiquity of digital cameras and Internet connections, the Schadenfreude** inherent in human nature, and the possibility that any of us may become a schlemiel or schlimazel*** at any time, combine to give the Global Public Humiliation Fairy a much wider range of prey. YOU could be next!
This might not be such a healthy development for individual psyches or for society as a whole. If you want to lead, or create, or innovate, or explore, the first barrier you have to overcome is the fear of mockery. This is a big fear: studies have shown that people, on average, fear public speaking more than death. Well, most of us can manage to shrug off an episode of schlemielery or schlimazelry witnessed by less than ten people. Some can bounce back after a goof in front of up to a hundred people. What the hey,
eventually they'll forget, right? Now, suddenly, if anybody nearby has a digital camera (and where I live EVERYBODY’S ^&%*# got them), you run the risk of your faux pas being uploaded to a global audience of millions, and saved in cache indefinitely. Years from now, you could get off a plane halfway around the world, and your business contact’s kid could collapse in hilarity at the sight of you, finally gasping out “Dance, monkey boy, dance!” or whatever name your Shameware went by. This prospect is enough to make even a recidivist extrovert like me want to hide under the bed.
Back in 1963 one non-celebrity, Victor DeCosta, a a part-time rodeo cowboy who billed himself as “Paladin” and handed out business cards that said “Have Gun, Will Travel” beginning in 1947, brought suit for trademark infringement and unfair competition, among other things, against CBS, which aired the “Have Gun, Will Travel” TV series beginning in 1957. He believed that CBS had misappropriated his persona to create its protagonist, and his case was pretty strong. Actor Richard Boone, who played the character “Paladin” on the show, looked and dressed strikingly like the plaintiff. Over the next thirty years, four juries awarded him damages and four appeals courts overturned the decisions because the relevant laws, though they kept changing enough for him to sue on different grounds, just never morphed into anything that fit his situation.
We who aren’t celebrities-for-a-living are now sitting ducks for the dark side of celebrity – having our least-flattering moments captured and displayed to the world like those two-bag-ugly cover photos in checkout-line tabloids. Yet we have no recourse, except for a few measly torts whose coverage is woefully incomplete. If somebody PhotoShops your picture so it looks ike you’re kissing a goat, you’ve got an action for defamation – IF you can prove you’ve never actually kissed one in your life. If a hidden camera films you trying on unflattering bathing suits in a store’s dressing room, you can claim invasion of privacy, but if you’re filmed walking around a public beach in a bathing suit with more “southern exposure” than you thought it had, that won’t work either.
Worse, what lawyers (as opposed to psychologists) call “self-help” – for example, investigating whether cameras have yet gotten small enough to fit up an obnoxious photographer’s nose if sufficient force is applied – isn’t an option either. Unfortunately, that’s battery, even if you take the batteries out first.
On the other hand, once EVERYBODY’s got their 15MB of shame online, the playing field might naturally level out again. Sort of like how polite the Old West was supposed to have gotten once everyone knew that everyone else had a gun. In the meantime (since hardly anybody actually knows what the law is) if you’re going to “be there” and “do that,” “getting the T-shirt” might help! As R Stevens says, “Never again will you have to worry about someone making you look silly on the internet. You’ll have beaten them to the punch by doing it first … in real life.”
* Such as the distinctive voice of Tom Waits and the phrase “Here’s Johnny!” used to identify Johnny Carson.
**The German language includes this specific word that means “delight at another’s misfortune.”
*** The Yiddish language, which may have more words for “fool” than any Arctic language has for “snow,” defines a “schlemiel” as someone who goofs up physically or socially, usually affecting others nearby, and a “schlimazel” as a frequent victim of others’ goof-ups. When the first schlemiel spilled the primordial soup, the first schlimazel was the one he spilled it on. And the bystanders who were out of range got some Schadenfreude. And found they wanted more.