FUNNY GIRL, SADDENED BY COURT RULING

© 2004 Mark H. Barinholtz

Last year, a controversy erupted in California over Barbra Streisand's right to privacy versus a photographer's constitutional right of free speech. Although her complaint sought an injunction against dissemination of allegedly intrusive photographs and $10 million in damages, the case resolved itself in the trial court this year when Streisand lost, her claims were dismissed and she was ordered to pay the photographer's substantial legal expenses.

The controversy was marked by acrimony. Streisand's complaint portrays the photographer, Ken Adelman, as an unsympathetic snoop, one of those "people who wish to pry into every aspect of her life." Adelman's lawyers dubbed Streisand's efforts "mean-spirited." The case does read like an act of celebrity overkill for which a special California statute provided the defendant photographer with a potent response. Although Streisand has legitimate concerns about keeping curiosity seekers away, she also has a penchant for seeking the limelight to exploit her own celebrity. It was the latter desire that undermined her claims here.

The Flyover

The California Coastal Records Project (Project) is the brainchild of photographer Ken Adelman. Adelman maintains an Internet website on which he posts digital photographic images, created by Adelman, of nearly the entire California coastline. Adelman takes the images from a helicopter above the Pacific Ocean at a distance of approximately 2000 feet off the coastline, and at an altitude ranging from 150 to 2000 feet. One of the images, Image 3850, sparked the dispute by including a depiction of Streisand's Malibu home in the frame. The image was taken at a distance of approximately 2700 feet from Streisand's residence using a digital camera with a zoom lens which did not function in a telephoto capacity. Additionally, there were no persons visible in Image 3850.

The Project's website contains over 12,000 images, many of which include homes occupying the coastal regions. One of the photos is a digital image of the coast off the City of Malibu which includes Barbra Streisand's estate, posted as Image 3850. Although the longitude and latitude coordinates from which the image is taken are also posted on the website, there is no listing of Streisand's street address number. Image 3850 is labelled "Streisand Estate, Malibu," but that "tag" is only searchable from within the website. According to the Judge, an Internet search for the tag, using Google for example, will not direct a searcher to the image posted on the Project's website.

The Lawsuit

Plaintiff, Barbra Streisand, needs no introduction. She is a world-renowned, multi-talented, award-winning celebrity. As a result, she is adored by fans worldwide, sought out by the curious, and, unfortunately, stalked by the uninvited.

Late in 2002, Streisand learned that her property was visible within Image 3850 on the Project's website. Her lawyers contacted Adelman, complaining that the display of Streisand's residence on the Project's website raised concerns "for her own personal safety." Adelman refused to remove Image 3850 or to cease his activities in any respect. On or about May 20, 2003, Streisand filed suit against Adelman, the web photo reprint firm Pictopia and the web hosting service Layer.42.net. The gist of her claims was invasion of privacy based upon various common law and state constitutional theories alleging intrusion into her seclusion and unlawful disclosure of private facts about her and her home life. Streisand also made a statutory claim under the state's right of publicity law in connection with Adelman's sales of photographic prints from the website. Finally, Streisand made a claim under an interesting California statute, Civil Code Sec. 1708.8, the state's anti-paparazzi law, alleging that Adelman "constructively" invaded her privacy through use of a visual enhancing device in order to capture personal or familial activities not otherwise accessible. On the heels of the complaint, Streisandmoved the court to enter a preliminary injunction to delete Image 3850 from the website and stop Adelman from any further disclosure, dissemination, or exploitation of the location of Streisand's property and residence.

Adelman took two approaches in response. First, he brought an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion to dismiss the entire complaint. Under California law, Civil Code Sec. 425.16, a defendant whose federal or state constitutional free speech rights are being threatened may invoke the statute to dismiss the allegedly impermissible action. The statute is a potent deterrent because it contains an attorney fees provision which, as in this case, may be used to punish a plaintiff who seeks to silence a defendant's speech in violation of his/her constitutional rights. Second, Adelman responded to the separate motion for preliminary injunction, attacking it as an effort to secure an improper prior restraint and as otherwise failing to meet the traditional legal requirements for injunctive relief.

Streisand's Public Side

Of particular interest to the Judge were the various activities of Streisand and her husband, the actor James Brolin, which evidenced conduct indicating consent and waiver with respect to privacy interests asserted through the lawsuit. In other words, the facts revealed through the website had already been made public, mostly by Streisand herself. Certain facts did support Streisand's claims that she values her private affairs; for example, that her home is secluded by location and other means, that she maintains an unlisted telephone number, and does not list her residence address under her more recognizable stage name.

Despite her taking such steps, the court focused on other conduct by Streisand and her husband which negated her claims. In the recent past, she had permitted photographers to take pictures of her and her husband inside her home for the purpose of publishing those pictures in a national magazine. The photographs included interiors of her home and of its adjoining grounds. She also had on various occasions invited guests into her home. Streisand also allowed aerial photographs of the residence to be taken. Those images depicted the ocean side of the property from a perspective closer than the image posted on the Project's website. She also allowed other photographs to be published by news organizations, depicting the rear deck, pool and elevation of the house, and an interior shot of a bathroom. She also maintains her own website on the Internet, barbrastreisand.com, through which she disseminates her views on various subject matters.

Finally, the court noted that Streisand and Brolin had a land use matter involving their coastal property pending before the Malibu Planning Commission. As a result, according to the Judge, an agenda item from a public meeting of May 19, 2003, which is available on the website for the City of Malibu, listed the true address of the residence and identified Streisand and Brolin by name as the owners. In the court's view, these facts, among others, fatally flawed Streisand's claims.

The Final Act

When the Judge dismissed Streisand's case on December 3, 2003, and ordered Streisand to pay Adelman's legal expenses, the basis for the fee award was a provision of California's anti-SLAPP statute. On May 10, 2004, the Judge ordered Streisand to pay a total of $177,107 to cover all of the defendants' legal fees and court costs. The order entered in the case reveals that Adelman's lead attorney earned $575 per hour for his winning legal work.

According to Entertainment Weekly, a representative for Streisand says that she will not appeal the decision. Consequently, the proceedings in the trial court, and any reports of the rulings there, will remain as the law of the case. Based upon a reading of the Judge's detailed analysis of the various claims and defenses, it appears that Streisand and her lawyers finally realized that her claims were dubious. Further appeals would likely have been futile. However, from her prospective, making her point, albeit at considerable expense, may have satisfied her desire to vindicate the "considerable anxiety" she claimed Adelman caused her. No doubt, after paying for her own legal team's efforts, the six-figure payment to Adelman's counsel added some "sour" to the final note.

Conclusion

This case is a good example of the aphorism which holds that you can't have your cake and eat it too. The Judge, in dismissing Streisand's claims, hinted that various forms of expressive activity might have tilted the court in Streisand's favor. For example, using Streisand's name to directly promote the sales of photographic prints, or flying so close to Streisand's property as to intrude upon her personal or familial activities, could give rise to a cause of action. However, those activities were not present here. And, because Streisand repeatedly injects herself into the public eye, including by means similar to those complained of, her efforts against Adelman were legally doomed.

© 2004 Mark H. Barinholtz

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