So, what have we learned over the past couple of weeks? Here's a hint: It's something New York Congressman Anthony Weiner learned the hard way (no pun intended).
If you want to keep something private, don't let it get anywhere near the Internet.
At this point, no matter what your politics are, I don't think anyone would argue that what Anthony Weiner did was monumentally stupid. We could debate for years what drives supposedly smart people in positions of power to somehow believe that they'll never get busted engaging in behavior that someone with the IQ of a hush puppy would know is a personal and professional cataclysm waiting to happen.
Who knows, maybe if you insulate yourself for too long at the top and breathe only the thinned-out air up there you forget that everyone has to yield to the laws of physics; no one is immune to them. Maybe Weiner convinced himself that as a firebrand politician the camera seemed to love, he could talk his way out of anything. Maybe he just wasn't thinking at all and instead did what millions have done before him -- namely allowed the proverbial little head to do the thinking for the big one. Regardless, he's now in a world of trouble and it could very likely spell the end of his career as a successful politician.
So what was the one colossal mistake that Anthony Weiner made that started the landslide which eventually came down on top of him (besides taking a picture of his crotch and Twitter-collecting co-eds in the first place)? He hit one wrong button; he publicly tweeted something that he meant to direct message. Once he did that, the picture that he had meant to be private went very, very public -- and that was his inevitable undoing.
But there's still a question in all of this about who a tweet -- or really any other Internet communication -- belongs to legally. In other words, sure Anthony Weiner is a public figure and sure if he sends something dumb out into the ether, that dumb thing immediately becomes important because he's an elected official; any journalist in America can claim the fair use of it because it's news. But what about the women who are now coming out of the woodwork, sharing their privately tweeted pictures and Facebook messages from Weiner with the world? It's true that Weiner, from a common sense perspective, shouldn't have had an expectation of privacy in sending x-rated communications to women he'd never even met; only a moron or someone seriously and arrogantly deluded would think otherwise. But how about from a legal perspective? Does Weiner have any recourse at all? Does he have any claim to the images of him that are now being splashed all over the blogs and on TV?
Anthony Weiner took the pictures. He posted them via his Twitter account. So does he "own" them?
The answer is threefold: yes, no, and it hardly matters.
Obviously this isn't a "publicity law" case, per se, which is a specialty of mine; it delves far more into personal privacy law in the age of social media. Still, the legal question of who owns the digital transmissions you send, likely dozens of times a day, is a pertinent one no matter from which direction you examine it. While there's been a lot of controversy over this issue, particularly over the question of who owns e-mails or social media transmissions sent from a corporate account, there's just no denying one simple fact: If you create something, you own the copyright to it, and an e-mail, tweet or Facebook message, it can easily be argued, is a creative endeavor.
That would mean that, at least in theory, Anthony Weiner holds a copyright on the photos and messages he sent to those women he supposedly had "cyber-affairs" with. Now, if he sent any of these messages from his work computer, the whole discussion is immediately moot simply because he happens to work as United States congressman, which means that all activity on his computer -- social media or otherwise -- is automatically a matter of public record. But if not, then what that means is that, legally at least, he might be able to sue anyone who distributes his personal material under copyright laws. Of course this is also a moot point at this stage because the genie is already well out of the bottle and trying to put it back in via the courts wouldn't just be a futile gesture, it'd probably be a PR nightmare for Weiner. He could, however, if he felt like being suicidally vindictive, attempt to legally take on those who leaked his personal transmissions to the press. He might lose, but he could try. Celebrities do that sort of thing all the time.
Now, however, comes the next inevitable stage of this sordid saga -- and the next big question.
What can Weiner do if the women he talked dirty to online -- a couple of whom have already started making the rounds on TV -- begin trying to sell the congressman's tweets and pictures, maybe even ones we haven't yet seen, in an effort to make money for themselves? In other words, what if two or three of these co-eds land book deals and decide to take Weiner's pictures to print? Can he take legal action then? The answer is an emphatic yes. It's one thing for a journalist to make a fair use argument; it's another thing entirely for someone to use what's technically copyrighted material to make money for him or herself. That's where the subject of publicity rights comes in. Yes, there's some wiggle room and the case law isn't quite set in stone, but a good attorney (and you have to imagine Anthony Weiner has a very good attorney) could easily argue that his client is entitled to retain the rights to his words and image and to prevent anyone from using either for profit, particularly when it's being used in a disparaging light.
Once again, will this happen? Maybe not. But this tale is still unfolding and at this point anything is possible. I mean, who would have thought a U.S. congressman would be dumb enough to think he could get away with this kind of thing in the first place? We're already way down the rabbit hole here.