What if you could capture your entire life in photos? The New York Times reported that a Swedish company Memoto has developed a wearable camera that accomplishes just that. http://bits.blogs.nytimes.com/2013/03/08/meet-memoto-the-lifelogging-camera/. This application goes way beyond Instagram.
Memoto’s website says: “The Memoto camera is a tiny camera and GPS that you clip on and wear. It’s an entirely new kind of digital camera with no controls. Instead, it automatically takes photos as you go. The Memoto app then seamlessly and effortlessly organizes them for you.” http://memoto.com/
Cool or dangerous? Maybe both. The application (and any other similar wearable camera that may come along) brings to mind Cambridge, Massachusetts filmmaker Ed Pincus who pioneered films depicting his day-to-day life (e.g., Diaries: 1971-1976). Like for most of us, a seemingly endless depiction of what we do all day actually wasn’t all that interesting to watch. There’s a reason scriptwriters, actors, and directors earn their living.
What are the legal issues? Obviously, the legal issues begin with privacy. Undoubtedly there are many others. But let’s start there. There are two flavors of privacy law to consider. First, the mere presence of a camera can be viewed what the law in wonderfully archaic terms calls an “intrusion upon seclusion”. Use of a camera in places and contexts that would be highly offensive to a reasonable person, such as a bedroom or bathroom, can meet that test. Such activity can also be criminal. Further, there are areas under security restrictions imposed by policy or law and there are places where photographs are prohibited by policy (e.g., “no photographs in this art gallery”). Second, dissemination of the images, too, could violate the rights of the persons being depicted in such places.
In other words, if we have an expectation of privacy, the law general speaking will protect it. In the United States, state law determines privacy laws.
Of course people take photos all the time of their friends in public settings like clubs and restaurants and at birthday and holiday parties. There is no reasonable expectation of privacy in such settings, even if the person being photographed thinks she doesn’t photograph well and says a discouraging word or two about the snapshot. In commercial contexts reality TV producers and filmmakers routinely obtain releases allowing otherwise private life scenes to be recorded and distributed. But this technological application is different. Crucially, the person wearing the camera does not control when and where the image is being taken. The image can be innocuous or salacious; most likely mundane.
So, perhaps armed with a handy iPad with a click-through release form or a sheaf of well-drafted release forms, users might be ready to go.
It’s fair to say our expectations of privacy are changing and diminishing as a practical matter due to the rise of technology and the Internet. The next time someone has a little plastic device on his lapel, you might just want to turn your “good side” to the wearer – or if that’s not good enough, check out the law.
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.