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Photographic Evidence, Naked Children, and Dead Celebrities: Digital Forgery and the Law

Jol A. Silversmith* (April 1998)

*A.B., Harvard College, 1994; M.Sc., London School of Economics, 1995; J.D. candidate, Harvard Law School, 1998. The Author wishes to thank Laura Abrams, Jennifer Mnookin, Peter Murray, Charles Nesson, Peter Rodway, Frederick Schauer, and Jonathan Zittrain for their assistance.

Introduction

I. Photographic Evidence

II. Naked Children
III. Dead Celebrities
Conclusion

 
Pictures never lie, right? Not anymore.(1)

Introduction

The ease with which photographic images may be manipulated is not a new challenge for the law. Photography is inherently incapable of reproducing reality exactly: From the start, it has sliced three dimensions of space as well as time into two-dimensional stills.(2) Further, virtually since the invention of the medium, photographers actively have sought to create images that distort reality, instead of accurately reflecting its contours.(3) At least as long ago as the McCarthy hearings, photographs presented in legal proceedings later were proven not to be reliable depictions of people and events, but instead to have been "doctored."(4) Even still, great trust has continued to be placed in photographs--both by average viewers,(5) and by the law.(6) But their manipulability has achieved a new prominence as well as significance in the rising era of image-processing software and the Internet; technology now provides relatively simple and inexpensive, as well as potentially undetectable, means by which to alter and disseminate photographic images.(7)

This Paper will examine the circumstances and consequences of such "digital forgery" for the law. Part I reviews the history and current status of photography, both fact and theory, under the law, as well as considers how the law of evidence may adapt to the challenges posed by digital forgery. The status of photographs as evidence has long been settled. They are admitted with minimal authentication, because they are regarded as generally trustworthy; most states even allow for self-authentication. But it was not always so--and current law does recognize that, even absent an intent to deceive, photographs still may not depict reality entirely accurately. Yet, there are few safeguards, forgery being regarded as uncommon and discernible. Law should not behave like an anecdotal ostrich. Theorists have warned of the potential consequences of digital forgery--and have put forward proposals as to how the law of evidence may be reformed to account for the explosive rise of digital photography and the associated image-processing software that facilitates the manipulation of photographic images.

Part II considers the one area of law in which substantial attention so far has been given to the potential of digital forgery: child pornography. But that attention best can be described as Luddite, however. The Child Pornography Prevention Act of 1996 outlawed simulated child pornography. But harm to an actual child is a pillar of current child pornography law and jurisprudence, the justification for its exclusion from the protection of the First Amendment the production and dissemination of simulations was explicitly reserved. But child pornography is a specter that can whip the public into a frenzy as well as win politicians votes--and now has been combined with a technological bogeyman. If secondary effects justify the Act, the entire digital medium is under threat. The law could--and if it serves political purposes, probably would--prohibit the use of technology to create works purely of the imagination, endangering not merely simulations of naked children--which, one should note, can comprise far more than child pornography--but a vast range of valuable works of art and literature.

Part III turns our attention to one of these other uses of the digital medium that could be under threat: the depiction--indeed, the effective resurrection--of dead celebrities. If today one can create virtually undetectable photographic forgeries, tomorrow one will be able to do so for motion pictures. The ability to bring celebrities back from the grave requires a re-evaluation of the intellectual property rights currently granted by the law. Valuable additions could be made to our cultural stock if control over images did not long remain limited to rightsholders and the heirs of celebrities. But celebrities also could be made to do things they would never do if still alive, depictions that neither they nor that estates would desire to see produced. One means by which to adjust intellectual property to account for these two forces is by tweaking existing legal regimes, such as publicity rights. But an alternative may be to create new law, such as by expanding on current trends and developments in the field of copyright law.

Finally, the Conclusion seeks to consider briefly how digital forgery can be placed in context with other technological revolutions to which law historically has responded. In general, the First Amendment has been examined anew for each new medium of communication; the result all too often has been a skewed allocation of rights and an unnecessary inhibition of the development of new technologies. Digital imaging is not strictly a new medium, but its possibilities are expansive. Yet the record of rushes to judgment on other contexts cautions that there is a risk that it may be crippled at birth; the injury may already by under way. Whether this ultimately will happen may depend on whether courts look for guidance to developments in Free Speech Coalition v. Reno(8) or Reno v. ACLU.(9)


Introduction*Part I*Part II*Part III*Conclusion*Footnotes

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