Legal Snapshots: Is This for Real?

1. Introduction

The impetuous evolution of communicative technologies has forced scientists from all over the world to seek for the advanced theoretical and legal mechanisms for regulating newly discovered relationships in a law field. In this regard, it is only natural that the right of being a social phenomenon is intended to provide adequate protection through its special procedure of regulation of social relations, the results of creativity that created by human genius.

Currently, there is an active process of the introduction of digital photographic and video technology in the practical activities of all the different spheres of our lives. As it was told by K. A. Modeer and M. Sunnqvist, the rapid development of these relationships caused the noticeable revitalization in the visual environment, where the questions of legalization in the media sphere began to disclose through the prism of many tangential surfaces, including cinematography, the art of photography and more. According to the authors, it is quite obvious that various forms of representation have different pros and cons. Equally apparent is that a better understanding of when and why various forms should be utilized, and, most importantly, how they can be combined, in many ways can improve legal knowledge and facilitate legal knowledge management (Modeer K. A., Sunnqvist M., 2012). Here we see the geniture and transformation of new approaches to reflect the legal reality in different forms, the most common of which – approximately speaking – are Legal Stagings, Legal Culture, Film-in-Law, Legal Cinema etc.

2. Presentation of main material

This situation can be easily explained by the fact that with the coming of the new media of the twentieth century – cinema, radio and television – the tendency was to follow the model of the stage rather than of the press. In the Wolfgang Donsbach’s statements, the contradiction between a fundamental right of expression and the control of specific media remains unaddressed (Donsbach W., 2015).

Legal Staging

Thus let’s consider them (Legal Stagings, Legal Culture, Film-in-Law, Legal Cinema etc) supplementary in the context of the subject of our research. The first study of law connecting with the popular culture began in the mid-1980s with its mixed focus on literature, film and television. It is true that as the contemporary culture becomes increasingly visual, new challenges and requirements arise for institutions that have historically been text-based. We should agree with the statements of K. A.Modeer & M. Sunnqvist, whose book  “Legal Staging: The visualization, Medialization and Ritualization of Law in Language, Literature, Media, Art and Architecture” can be used as a manual textbook is a collection of articles written by lawyers and scholars in a variety of fields. To their mind, Legal Stagings examines the many visual representations law has as summed a cross a multitude of scholarly disciplines and artistic genres, including architecture, theatre, cinema, literature, and journalism, as well as in courtroom art and portraiture. Mixing theoretical analysis with practical experiences, the articles here examine not only how law contributes to visual culture but how that culture in turn analyzes, maintains, criticizes, and ultimately transforms law (Modeer K. A., Sunnqvist M., 2012).

Legal Culture

Moreover the term Legal Culture a extensive and generic term for other related definitions. By “Legal Culture” well-known American scientist Lawrence M. Friedman means nothing more than the ideas, attitudes, values and opinions about the law held by people in society. Legal culture refers to those ideas and attitudes which are specifically legal in content – ideas about court, justice, the police, the Supreme Court, lawyers and so on (Friedman L. M., 1989).

Legal cinema

One of the most complete research in this area was conducted by the group of  scientists, who studied this social phenomenon in Canada, France, Australia and the United Kingdom. As they pointed out, the scholarly approach in law and film studies varies, and there is the “law-in-film” approach, which is primarily concerned with the ways in which law and legal processes are represented in film (the “law-in-film” approach considers film as a jurisprudential text by asking how law should or should not regulate and order our worlds by critiquing the way it does so in film). There is also a “film-in-law” approach, which asks how films about law constitute a legal culture beyond film. This approach pays special attention to film’s unique qualities as a medium and asks how its peculiar ways  of world-making shape our expectations of law  and justice in our world at large (Robson P., Sibley J., 2012).

Under the understanding of R. D. Levi, the genre of legal cinema is an extensive and revealing one: it is a body of films that depicts lawyers, clients, criminals, judges, and juries, often not as they actually are, but as we would like them to be. The idealized courtroom of many legal movies tells us a great deal about what we think of our justice system and what we want it to reflect about America, but the films in the genre vary widely in how they do this (Levi R. D., 2005). Austin Sarat continues these arguments, asserting the footage (that makes up the documentary) was shot using digital video and the technology more commonly associated with mainstream “legal cinema”. It would be wrong – continues the scientist – to exclude this documentary from consideration under the rubric of “law and film” as it would ignore the dramatic changes that are taking place in the technology of cinema where the division between the established and the newer digital technologies is diminish (Sarat A., 2008).

Noteworthy that television itself and cinematography in common never became a self-dependent subject of study in the interdisciplinary field of law and popular culture. In accordance with the opinion of P. Robson & J. Sibley, the beginnings of the law and culture field did not treat television differently from film and literature; so that is why the media departments and cultural studies programmes today, however, study television as a unique medium with its own representational systems, production mechanism and distribution channels (Robson P., Sibley J., 2012).

Social media

Nowadays the development of social relations determines the increase of different social “media” where – as it was told by Roger LeeRoy Miller and Frank B. Cross – most young people think of social media – Facebook, Twitter, Pinterest, Google+, MySpace, Linkedin, and like this – as simply ways to communicate rapidly, business face ethical issues with respect to these same social media platforms (Roger L. R. Miller&Frank B. C., 2015). The dissemination of visually recorded information through different social networks has become this magnitude and speed that sometimes topical news are not known issue with evening TV programs, but due to the popular bloggers and Internet communities. And vice versa it became commonplace borrowing freely available material from living networking platforms for use in the official television commodities.

The right of publicity or privacy?

Despite all the above, one of the determining factors in modern science is updating the study of various forms and ways to protect the rights of people to privacy in video and photo shootings carried out by others and promulgated through social networks and other legal snapshots, which lead to the spread of images and other information about the person despite her inner will and external expression. A right of publicity, which is often violated in such cases, sometimes also called the tort of “appropriation of personality” is defined as a property right, usually exercised by a celebrity, to control the unauthorized commercial use of his/ her name, likeness, or other recognizable aspect of personality (Vaver D., 2006).

By then the situation where not only violated the copyright owners of information, but also affected the interests of the people depicted in the video or photo facts is not uncommon in this case. Not accidentally academics and practitioners from all over the world are currently divided on the issues involved in permitting and regulating the commercial exploitation of publicity. Among the latest scientific researches in this area the special attention should be given to the Gillian Black’s book “Publicity Rights and Image: Exploration and Legal Control”, reflecting detailed exploration of the justifications advanced in favour of publicity rights, and thus providing a theoretical and multi-jurisdictional review of the nature of publicity practice and its appropriate legal regulation. The author concludes by arguing for a publicity right which provides a degree of protection for the individual but which is significantly curtailed to recognize valid competing interests. (Gillian Black, 2011).

Parallel to this there is another problem of legal validity – the practical impossibility of searching for the responsible person in the case of spreading false information or submission of distorted data about commonly known facts, deforming and completely turning over their content. There are always such situations with  threat to the robustness of the free media in such content. For example, there was some debate over the 2005 publication of controversial cartoons that depicted the Prophet Muhammad and caused a severe global crisis for Denmark. The repercussions included attacks on Danish embassies in the Middle East and condemnations from the UN Secretary Generak and former US President Bill Clinton (J. Whitten-Wooding, Douglas A. Van Belle, 2014).

The best interpretation for this practice was made by Emilio Santoro, who claimed: “It is crucial for there being an infringement of autonomy that limited social conditions are seen as “unreasonable” and as resulting from other’s activity, if not by their producers, at least by neutral observers. Thus, between the subject and the community there may arise a conflict about beliefs similar to that about ends, hence equally relevant but equally out of the subjects control. The subject therefore can no longer control not only her freedom but her autonomy as well. This paradoxical conclusion follows from the traditional and current belief, that a judgement on the means-ends relationships is a factual one. Underlying these views is the tacit assumption that this judgement is about objective factors on which there can be no discussion among the impeded or impeding subjects and the external observer” (Santoro E., 2003).

While other researchers argued about the possible measures in validity to interrupt someone’s privacy, there is a group of authors who aim to investigate the other side of this process – the limits of cameramen and photographers activities. Pursuant to the Gorman Ginsburg’s point of view, a photograph violates a copyright law where the subject and rendition of the first photo are substantially similar to these in the copyrighted photograph (Ginsburg Gorman, 2007). These considerations were supported by S. Sholik in his review “Legal Photography: A Complete Reference for Documenting Scenes, Situations and Evidence for Civil Cases”, where it is reasonably proved that the legal photographers are responsible for ensuring that the images captured and delivered for presentation are a “fair and accurate representation” of the observed scene. That responsibility begins with the choice and use of the proper equipment, through the techniques used during image capture, to the processing of the capture for output (Sholik S., 2015).

Directly in front of the right of privacy (or the right publicity in some specific cases) is the freedom of pressmen functions. Although at first glance media law seems to consist of restrictions on the freedom of the press and broadcasters, that perspective can mislead. It is important – stress E. M. Barendt & L. Hitchens – to emphasize the central place of media freedom: the freedom to report and discuss matters of public interest (Barendt E. M. & Hitchens L., 2000).

Do the free media exsist?

Based on analysis, conducted by Chris Frost, it seems that there is almost nowhere in the world that has a truly free media. In capitalist societies, proprietors and advertisers have a strong role in controlling what is published or broadcast, and the line the journalist takes while covering stories. Societies which are controlled by totalitarian governments, or which face strong social control from organized religion or other sources, – concludes the author – are also constrained in a way which militates against a free press, and even in democratic societies governments will try to control the information that is disseminated about them. All of this allows the scientist to underline that the right to receive information is not the same as “the right to know”, meaning somebody would certainly like to know all sorts of things, but that does not give him the right to know them. Some of them might legitimately be secret or private, some may just be unknowable and some may require some effort on my part to learn of them. Summarizing his analyze, Chris Frost provide us the brilliant reasoning, according to which everybody should have the right to ask questions and receive information; cause it is not much use one person having the right to freedom of expression if no others have the right to receive that expression, provided they make some effort (such as buying a newspaper or searching the internet) to do so (Frost C., 2015).

There is no doubt in the fidelity of S. F. Kreimer’s conclusions, underlying that once information is released, it becomes an element of the lives of those who observe it as well as part of the lives of those who product it. The experience of viewing the arrest of my neighbor or of seeing her wear an embarrassing party hat while strolling in public, is an element of my lived reality; likewise, the experience of hearing her berate me or lie to me as much my own as it is hers. A legal regime which gives my neighbor the right to preclude recording those experiences impinges on my control of my own recollections. Exposure of information to the public gaze provides public viewers a legitimate stake in the information that was absent before the exposure. (Kreimer S. F., 2011).

It is also true that on the other hand we receive the exceptional necessity of legislative regulation these issues is governed more general principles of law than specific legal norms. However, since the introduction of digital capture and retouching, public skepticism of the ability to believe what one sees in a photograph is also increasing. Because of this increased skepticism, the role to photographers familiar with the requirements of legal documentation in a fair and accurate manner (Sholik S., 2015). That is why we should agree with the S. F. Kreimer’s assertion, according to which once we recognize that image capture is protected by principles of free expression, proposals to improve liability without observing the established limitations of privacy torts – either by common law innovation or by statute – raise serious constitutional questions. Such liability would facilitate interference with efforts by private individuals to preserve their observations for future review, reflection, and dissemination without any actual demonstration to a court of substantial countervailing privacy interests (Kreimer S. F., 2011). Moreover the modern legal doctrine needs to find out the unconventional and creative ways to obtain the necessary information while avoiding unlawful interference in private sphere of the individuals life. In obedience to the thoughts of J. Van Fee, we crave to gain an understanding of national and international legal principles, regulatory bodies, and enforcement mechanisms that govern the use of technology and information (Van Fee J., 2010). 

Conclusions

However, the modern science requires a thorough grounding in the design  and implementation of definitive novelties that can not be based on self-intuitive confidence in the final findings. Taking into account the specific relationship of the considered phenomena in legal reality, outlined above, we consider it appropriate to combine them in one general concept “Legal Snapshots”, such as the one that provides the best reflection of the whole fullness and diversity of artistic and legal manifestations of  video (photo and other) arts-in-law, including Legal Stagings, Legal Culture, Film-in-Law, Legal Cinema, freedom of press, right of publicity, right of privacy etc. Because it depicts the main features of law validity all of this expressions, thus, as we believe, it can ensure the effective protection of each of the components, presented above, together with other relevant categories and separately.

Ilustracja: Rohan Kar, Photography and The Law, Flickr CC BY 2.0

Summary: The article provides the results of the multidisciplinary research in the field of legal snapshots, based on the comparative analyze of mutually connected definitions, such as Legal Stagings, Legal Culture, Film-in-Law, Legal Cinema, freedom of press, right of publicity, right of privacy etc.

Keywords: a legal snapshot, a legal staging, a legal culture, a film-in-law, a legal cinema, a freedom of the press, a right of the publicity, a right of the privacy.

Bibliografia

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dr Oксана Кіріяк

Ph.D. (in Law), Associate Professor, Department of Private Law, Chernivtsi National University, Ukraine

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Ph.D. (in Law), Associate Professor, Department of Private Law, Chernivtsi National University, Ukraine

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