Let's imagine that you and your eighteen-year-old girlfriend get bored one day and decide to make a sex tape. Let's further imagine that your ex-girlfriend eventually breaks up with you but (thankfully) forgets to demand that you destroy the tape. Six years later the ex-girlfriend becomes a reality show star, and the sex tape sitting in your closet is now potentially worth hundreds of thousands of dollars. Can you sell it without getting her consent? Can you release it on the Internet without getting sued by her?
The above "hypothetical" is of course based upon the real-life situation faced by Kendra Wilkinson's ex-boyfriend, Justin Frye, who reportedly ended up selling a sex tape with Kendra to Vivid Entertainment for $100,000. Kendra has been widely quoted as supposedly being despondent over the release of the tape, stating on her show that "It broke my heart because how can [someone] do that when I have a baby? It just sucks. It's the hardest thing to deal with right now."
Most bloggers have been skeptical (to say the least) of Kendra's protestations and with good reason. Kendra had to consent to the release of the tape in order for a well-established company, like Vivid, to release it legally. California and most states have passed specific laws protecting a person's "right of publicity," meaning their right to control and license their image for commercial purposes. The law also recognizes the tort of invasion of privacy. Courts have held that celebrities have a right to keep their sexual life private, and will grant injunctions to celebrities who show a threatened violation of their right of sexual privacy.
If Kendra had objected to release of her sex tape, she could sought an injunction preventing Vivid or Frye from ever releasing the tape under either a right of publicity or a right of sexual privacy theory. I have no doubt that a court would have granted such an injunction. The fact that she did not obtain the injunction demonstrates that she must have entered into an agreement with Vivid. And, in fact, Radar Online has reported that Kendra has already received $680,000 from Vivid and will get up to 50% of profits from the tape in the future.
So, the bottom line is that if you ever find yourself lucky enough to be in possession of a celebrity sex tape, you are going to need the celebrity's consent before you can sell or release it. The good news is that both you and the celebrity stand to make a lot of money if you can convince them to consent.