THE BLOG
11/08/2009 05:12 am ET Updated May 25, 2011

Copywronged: Lessons from Leibovitz on Likeness and Liability in the Digital Era

What do Barack Obama and Woody Allen have in common? It's too early to tell, but maybe American Apparel didn't learn its $5 million lesson and will be bold enough to license one of Leibovitz's Obama photos from the future Art Capital collection for yet another shock billboard campaign. As if the first family doesn't have enough to worry about in policing the image use of family members in efforts to get attention, Leibovitz's Faustian bargain with Art Capital to sign over the copyrights to past and future photographs could affect many of the world's rich and famous.

While some may consider Art Capital a loan-sharking artists' pawn shop, they may actually have struck one of the shrewdest business deals of the century depending on the personal releases negotiated by the celebrities' legal handlers. Hopefully, they were more shrewd than the lawyers representing Leibovitz in her negotiations with Art Capital that stand to possibly put Goldman Sachs back in the saddle again, too. Leibovitz's prior legal losses over parody use by the Paramount Studios spoof of the iconic pregnant Demi Moore image for the Naked Gun sequel, should have her past subjects of intimate portraits questioning whether they don't want to strike a deal with Art Capital before the uncontrolled creative potential of their images truly gets unleashed. Thus, Art Capital may have just sparked the newest frontier of intellectual property squatting, not too unlike the press around the NTP/Blackberry patent lawsuit or the cyber-squatting of domains like the the one for the George W Bush library.

What could be more horrifying to those in the glitterati than to lose control of their identity? Just ask Goldman Sachs' previous TARP dance partner, Bernard Bernake, a recent ID theft victim. The pedestrian social media implications are clearly understood as demonstrated in the Facebook "terms of service" rebellion on the ownership of user content like uploaded photos. Corporations know it is no trademark joke that Twitter lost its Tweet. And Tweetasaurus Rex, Ashton Kutcher, could hardly have been expected to defend Demi's honor against the entertainment industry, given his rise to fame is largely attributed to his success in exploiting the unwary punk'd likeness of others just as Sacha Baron Cohen has created a business model around deceptive copyright chicanery to fuel his movies.

Described by the Library of Congress as a "Living Legend", Leibovitz's photo sessions at one point may have been seen as a Great Gatsbyian moment of arrival or a rite of passage for old wealth. However, a brave new era of intellectual property rights, monetization and consolidation now challenges such preconceptions as represented in Disney's acquisition of Marvel properties in the metaphorical vision of Batman"s genuflection before Mickey Mouse.

The recording industry may be dying, but apparently its past use of indentured servant artist contracts are making a comeback with the ownership of future works. Outside of her personal financial decisions, Leibovitz is a prime candidate for such a scheme given that she is one of the rare professional artists capable of commanding exorbitant fees for hire as "the world's best-paid photographer." The fundamental conflict lies in the transformation of her previous status as a premium "high-artist" photographer of the stars to essentially a paparazzi with an invitation based on her aesthetic talents who now will have a track-record of trying to sell her talent's likeness for some cash. The upside is that she may be able to expand her credit card client base beyond shooting for American Express. As a new spokesperson for Mastercard's "Priceless" campaign, she could offer a powerful example of how this dissolution of her own brand equity is one of those things that "Money can't buy"- back . . . ever.

In Annie's all too familiar American story of financial woes, she found a lifeline in someone "comfortable utilizing fine and decorative art as the sole asset in securing a loan." Just how "comfortable" all of her subjects will be with her signing away the copyrights to their images and with all of the legal, release-based possible applications has yet to be seen or really discussed.

Perhaps a board game called "Downturn" with photo playing cards of all of the celebrities and icons Leibovitz has captured over the years might be a good promotional start for her new role.

The winning card? "God save the Queen!"