Ouchy the Clown and his wife iKandi are, as their names might suggest, no strangers to attention. In the 2001 edition of the San Francisco Bay Guardian's Best of the Bay awards, Ouchy was named "Best marriage counselor who will beat you into reconciliation." It's not clear how much competition he had. For her part, iKandi was one of a group of guerrilla porn clowns who were recently thrown out of Macworld trying to promote their fake company, Evil Klown Industries LLC, and its iKlown Personal Digital Companion.
But when Ouchy and iKandi found pictures of themselves taken last fall at San Francisco's infamous Folsom Street Fair posted online, they got steamed. Ouchy had been performing his locally famous evil clown act, collecting $1 per minute spent flogging people on behalf of the Sisters of Perpetual Indulgence, made up as he often is in a carefully-done fusion of white-face, red nose, black leather and lots of skin. IKandi, who has worked for years in public relations, was doing what she calls her "media bitch thing": trying to get the many would-be Annie Leibovitzes in the crowd to donate $1 per picture to the Sisters.
What they didn't know was that Stuart Zimmerman, the owner of a new photo storage Web site called Funpixs, was part of the camera-toting paparazzi. He snapped some shots of Ouchy and iKandi -- and several of their friends -- and then posted them on his fledgling site.
Flash forward several months to the day some friends sent Ouchy and iKandi a URL for the Funpixs pages where their Folsom Street Fair pictures were on display. Funpixs, which ostensibly bills itself as a place to store your own personal photographs, also functions as a site where people can buy hot images of hot people doing hot things at hot events.
They blew up, and iKandi fired off a furious message demanding the shots be removed. A couple hours later, a response arrived, granting her wish. But the message was hardly contrite. "[K]eep in mind that you were photographed at a PUBLIC EVENT and knew quite well that your picture would be taken probably hundreds -- if not thousands -- of times without your permission and without any say as to what is done with them. That is just your implied consent for being there and dressing up to attract attention."
Ouchy and iKandi knew their pictures were being taken at the fair. In fact, iKandi says, she didn't care when a photographer from Hustler took some shots of her wearing her leather corset, "with titties popped out," a see-through skirt and striped stockings. "We wouldn't mind being in Hustler," she says. "We gave consent and second of all, we get exposure that's legitimate that we approve of."
So why did she and Ouchy object when their images appeared on Funpixs? Because they weren't able to choose, they say; they weren't able to decide if they wanted Zimmerman making money off them, or if they'd get to share the profits. "I feel like they're sucking the blood out of the arts scene when they do stuff like this," iKandi says.
Zimmerman says he hadn't thought he was crossing the line by posting and selling photos he'd taken at the Folsom Street Fair, which he called a "test event" for Funpixs. Sheepishly, he also says that because of the controversy caused by the pictures -- others complained in addition to Ouchy and iKandi -- he no longer sells photos from public events. "It was never our intention to piss people off," Zimmerman explains. "We thought we were providing a service that people like and preserving a memory from an event people attended."
But did he break any laws?
In their 1998 article "The Developing Right of Publicity," Chicago attorneys Robert J. Labate and Jonathan S. Jennings addressed the issue of how much control subjects of photographs have over their own image. "The right of publicity is the right of a person to control the commercial use of her identity, such as her name, likeness and in some cases, voice," wrote Labate and Jennings. "Generally, it is recognized as a property right (that is, you own it) which can be assigned or licensed."
It is universally accepted in the United States that news organizations can publish any images they want, with or without consent. But when it comes to the sale of images, the law is murky. Labate and Jennings point out that enforcing the right of publicity is a difficult matter, depending almost entirely on the state a complainant lives in. And because of that, the Internet poses a unique problem. The Internet is universal and immediate, making it quite tricky to determine jurisdiction in a legal battle. In California and New York, home to most of the media industry, the right of publicity is fairly well developed; in at least 25 states, however, there is no such standard.
J. Thomas McCarthy, a professor at the University of San Francisco School of Law, says things aren't clear-cut even in a state like California. To him, the question boils down to where the picture is taken. In a public place, he says, a photographer can take pictures of anyone he wants and do anything he wants with them, so long as he doesn't use them in advertisements. In private spaces and at private events, he posits, people have a much greater expectation of control over their image. "It's a fuzzy line in the law," McCarthy says. "It's basically subjective. Do most people have an expectation of privacy at this place? Is what you do private and nobody else's business?"
In some cases, a private event promoter may feel compelled to inform attendees they could be photographed without consent. For example, tickets to Burning Man, the annual arts and experimental-community festival held on Nevada's Black Rock Desert, contain this warning: "Commercial use of images taken at Burning Man is prohibited without the prior written consent of Burning Man. You appoint Burning Man as your representative to take actions necessary to protect your intellectual property or privacy rights, recognizing that Burning Man has no obligation to take any action whatsoever."
Marian Goodell, a spokeswoman for the Burning Man organization, says, "We have expressed to people that there's a cultural expectation to their behavior as a photographer, and that's highly effective. Burning Man is a community. We're creating some protocols and standards and values in the culture. We're willing to do our part to uphold that. We expect participants and photographers to do their part as well."
In many cases, when Burning Man participants have found their pictures on Web sites, they have successfully managed to get the site owners to remove them. But in certain cases the organization has stepped in, particularly where shots of naked or topless women taken at Burning Man were being offered for sale. Such sites may portray their images as "artistic," since the women in the pictures might have painted their breasts in metallic silver or red or yellow or green paint. But without consent for the pictures, either from the subjects or from Burning Man, their right to sell them is tenuous.
By all accounts, the law governing publication of images online is no different than that for other media. What concerns Ouchy and iKandi, though, is that sites like Funpixs can reach potential buyers anywhere in the world. And it can take subjects months -- as it did Ouchy and iKandi -- to discover the images.
Exhibitionists beware. In an age of faster, quicker and cheaper technology, in which inconspicuous photographers armed with high-quality digital cameras can be lurking anywhere, in public or in private, people who don't want their parents seeing them dressed like evil porn clowns had better be careful. According to USF's McCarthy, that has always been true, but as the Internet becomes easier to use and imaging equipment gets better and cheaper, people's freedom to do what they want where they want and when they want is going to be more potentially embarrassing than ever before.
This article has been modified since it was originally published.