i see it a bit simpler than that. And again, we need to separate the moral arguments from the legal
The photos were said to taken in Miami USA, at an end of year trip. The room background and the content suggest that to be true. the photos were obtained from Sams computer, when she say them and emailed them to herself.
I think it is hard for you to separate the legal facts out from the moral arguments as you are already assuming facts not yet in evidence and interestingly they all favour a view that serves the St Kilda players' interests.
If i say you can use my laptop doesnt mean you can steal whats on it. And then publish it. It would be the same for an excel spreadsheet or word doc.
agree
Clean hands ? I get the attempted pun, but these photos arent pornographic or ilegal. One guy pleasuring himself, and another standing naked with a another guy near by. Maybe they are lewd. They are certainly immature and a bit homo but whose business is that? Its hardly the same as someone taking photos up skirt. At this point, Im thinking you havent seen the pictures...Its clear that the Nick one was posed.
Well I didn't write the Statute. I didn't write the upskirting laws. We are talking about legal rights and obligations, the upskirting laws being criminal. However I would be careful when earlier posting as you made an accusation that she was guilty of theft, which implies criminality.
The upskirt law is the title of it, but in the definition of whether you have violated skirts have nothing to do with it. Their are no gender specific laws in Australia. It is about genitalia. Lara Bingle would have been served better had the upskirting laws applied in a more northerly direction.
Clean hands is an equitable doctrine "one must come to court with clean hands".
I have read so many different versions of who will be bringing the action, what action/s, which parties etc.
My impression is it will be Nick and primarily breach of confidence, defamation and copyright infringement. I think the breach of confidence is shaky. They seem to be primarily putting most of their faith in the copyright as it has the clearest chance of success. That puts them on a par with the Church of Scientology! How laudable.
The point is that if Sam took the offending photo of Nick and other photo/s the court may see what he did as being tainted with illegality. ('clean hands'). But they may make him a co-defendant. Who knows?
It is only an issue if Sam tried to bring a complaint. At this point in time the most talk is of Nick taking action. If there is a proposed action by Sam in relation to the photo of Nick OR any other photos ("the photo/s") that may come into evidence and be accepted into evidence, whether through defence or plaintiff, he may not have clean hands. Anyway we are talking about breach of copyright and there are also 'moral rights' (legal copyright 'moral rights) which are very strongt.
Not once have you addresses the issue of copyright. She did not take the photo, she is not the copyright owner, she cannot publish that content without permission of the owner. I cant say I am the writer of the song Hey Jude just because I stole the sheet music from a friend's nans' pianola.
I don't think anybody really needs a lecture on the distinction between the chattel and the intellectual property residing in it. However we don't know what "photo/s" will be put into issue and accepted into evidence by the Judge.
IF it is established to a legal standard she didn't take the photos, based on relevant admissible probative evidence to the satisfaction of a Court of law, then absolutely he has no ownership rights.
Things that have been said by all parties (hearsay, directly) may play a part in establishing to a legal standard where the ownership lay. There has been a lot of hearsay and discussion in the media.
We know that there wasn't any assignment, and he ARGUABLY didn't licence her to use all the photo/s the way that she did.
Whether Sam gave implied permission to her to keep or publish to a limited audience some of "the photo/s" is another issue. If he didn't own the copyright can he validly pass it to her? Sam may have given her the permission to take his collection of which he seemed to be somewhat proud, to a limited audience (maybe the parties involved in the
big event). Sam certainly wanted other girls involved in the actions he partook in.
can you please post a link to any article that suggests that Nick and the girl were involved? She never claims they were intimate or that they knew each other in the biblical sense. She says she only met him once in public, getting on the team bus.
Nobody claims that.
I think it will all be shut down when they ascertain the girl didn't take the photos. And wasnt there when they were taken.
You are assuming facts that havn't yet been established in a court of law to a satisfactory standard.
And as a society maybe we will come to the conclusion what consenting adults do in the privacy of their own homes doesn't require judgments from the chattering and twittering classes or belong on TV or in newspapers.
There are some outstanding legal questions relating to fair dealing rights. These are public figures and people do spend their money defending them and they have a right to see how their money is being spent. The schools have a right to decide whether they want to allow the football clubs into the school or raise their insurance premiums. Fathers may be interested in whether their daughter takes the day off of school on the football clinic day. I'd be happier to see the case tried in Miami but that ain't gonna happen. If you read the Panel case and other fair dealing cases Australia has fairly limited fair dealing defences, however they are there for a reason. Too bad the case isn't being determined based on US law which would give her a better chance at 'fair use'.
Now as a test for the right to publish the pics, here's the thing. If the pics are posted here bulldogs10110, should they be left up or taken down? El Diablo would sent enough infractions to give me an infarction
Take down for copyright or defamation?
I cannot give legal advice as I am not practising at the moment, however I started to list exhaustively the case law that could be implicated if breach of confidence, copyright and defamation are involved. It ended up being over 100 cases. You would know that it depends on how a case is framed, what the substantive action is, pleadings, and you cannot apply the law in a vacuum. However if you want the list feel free to read them all
Happy to post them here, but once again don't read into it that I have 'selected' them as applicable to this case. I am not on the legal team and don't know who the parties are.
In relation to your some forum publication issues have a look at:
Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210, Rindos v Hardwick (unreported WA case March 1004) and Godfrey v Demon Internet Service [2001] QB 20. (FOR STARTERS...not exhaustive)
