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Who Owns Your Photos and Texts on Your Old Cell Phones?

An artist purchased old Razr cell phones and then published what he found on those phones in a new book after his original artistic idea fell through.

You can watch Andrew Horansky’s KHOU-TV story to learn more of what happened.

You can also read more on it here from Dwight Silverman’s TechBlog.

From the legal perspective, there are several issues that immediately come to mind:

Copyright.  Genrerally speaking, if you took the picture, you own the copyright.   If the picture you took made it in the book, you could claim a copyright violation.  You would have a difficult time claiming any damages, but you might be able to get an injunction if you really pushed.  There is a possibility that the artist’s use is a fair use for artistic/critical purposes or that using the image with the others is a transformative use.  It is also possible to claim the copyright was abandoned and so the images are in the public domain, but that usually requires an express declaration that you don’t care if people copy your images rather than simply being careless and leaving it on your phone.

You could also claim a copyright in the texts, but short phrases and titles are not subject to copyright and there is some requirement of originality.  “Can’t wait 2 C U 2night and by U I mean ur penis” may not cut it.

Invasion of Privacy.   Many states recognize a common law claim for invasion of privacy.  Generally, a plaintiff would have to show the artist intentionally intruded on the person’s private affairs in a highly offensive manner.  This claim would require the jury to look at the reasonableness of all parties and may blame the person who turned over his phone without wiping it clean.

The claim for misappropriation of likeness for a commercial likeness also falls under privacy claims.  Generally, you would have to show the artist purposefully appropriated your likeness or name in a way where your likeness can be identified for a commercial purpose without your permission.  This claim usually applies to the use of celebrities without their permission more than an Average Joe, but you could argue this is not art or newsworthy and the artist is merely trying to make money from using the picture of you.

Computer Fraud and Abuse Act.   The CFAA is usually anti-hacking statute, but you could argue the artist knew he did not have authority to access the images and text and therefore exceeded his authority on a protected computer.  Would these older Razr phones be considered a computer and could you ever prove the necessary $5,000 in damages to bring such a claim?  It could be worth exploring.

Based on the reports, the artist appears ready to work with anyone who may be upset with his book, so this may be an academic discussion.  In fact, it does sound like a law school essay question.  You would just have to add a few additional juicy facts like one of the images included a picture of a famous copyrighted picture while another was a video of a famous musician before they were famous singing someone else’s copyrighted song.   Thank goodness I’m not in law school anymore.

Lesson Learned.  The obvious lesson is to make sure you clean your cell phone or smart phone before you upgrade.  Imagine if these phones belonged to a lawyer, doctor or other regulated profession and it had personal information.   You should have a policy in place to prevent this type of mistake from happening.