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10 Opening the Can: Home Movies in the Public Sphere Melissa Dollman I had an argument with someone a few years ago about whether or not the dead have a right to privacy. In making the film I decided that they don’t, really. Who is protected by that? By selling all her papers to a public institution before her death, Sontag already violated her own right to privacy. As did her son by publishing her diaries, even though he edited them. —Interview with Nancy Kateson on her film, Regarding Susan Sontag (2014) Getting Personal about Privacy Famous or not, your likeness has probably been captured in photographs or a home movie—your family’s, a family friend’s, a stranger’s, a passerby’s. Moreover , it is possible that on whatever medium your likeness was captured, it may be preserved by an archive or library and open to researchers, sold at auction, displayed online, or make its way to a stock-footage provider where it could be purchased and used in someone else’s artwork or film. If you are a celebrity or otherwise notable, you may have an estate manager or lawyer monitoring the use of your image. If you are mentally ill in the United States, there are additional protective measures regarding your medical records—including images and video—such as the Health Insurance Portability and Accountability Act. And as of 2014, a citizen of the European Union has the “right to be forgotten,” under certain circumstances, from search engines in perpetuity.1 What about the rest of us? What rights do we have upon discovering that our likenesses have been repurposed or exhibited without permission or compensation ? In the days before digital images, it was easy to “delete” unwanted representations of oneself by ransacking the family picture album for embarrassing prints, cleanly snipping out a section of 8mm film, or erasing a videotape. If you partake in social media and are concerned about appearing in often easily distributed, seemingly ephemeral, digital photos, whether it be for professional 230 | Melissa Dollman reasons, out of shyness, or even vanity, alleged safeguards are in place that allow you to vet or delete those images. At least, in social media parlance, you can ask a friend to “untag” you.2 We live in a surveillance culture, and there are numerous locations where your image can be captured or disseminated without your knowledge or explicit consent. Imagine the less sinister scenarios where you might incidentally find your own photo or that of a family member: in a shoebox at a thrift store, in an old “On the Street” fashion spread by the late photographer Bill Cunningham for the New York Times, or in Found magazine. What a shock, though, to discover yourself in someone else’s video art piece, as stock footage on Getty Images, or in the Internet Archive. How would you react to this once personal artifact now completely and utterly out of context? For some, any representation is positive. Others prefer (and believe they have a right to) anonymity. And some countries, (not the United States) allow citizens the “right to be forgotten,” to have digital images, or unfavorable online references, deleted so they can return to anonymity . Ultimately, you might question the feasibility of protecting your image after death, as your privacy rights extend only that far anyway. However, as the epigraph for this essay indicates, if you are famous, your rights may still be hotly contested once you are out of the picture. Both ethical and legal issues come into play when deciding how to use moving images of anyone who comes before the camera, as intellectual property expert and copyright attorney Eric J. Schwartz points out: The legal obligations come in three flavors: (1) a right of privacy which we all, in theory, have, to prevent an unflattering portrayal without permission whether on analog or digital film or still photographs (as well as libel and defamation laws which govern intentional misrepresentations); (2) a right of publicity , limited to the famous (and infamous) when their portrayal, including their image in any medium, is linked to a commercial use; and (3) copyright which dictates the ownership and use of the film or other medium by the filmmaker (and to some extent also the “performers”—the subjects in the film), as well as any exceptions thereto. But the law does not provide a complete guide through the challenging ethical issues that can arise when working with moving images...


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