See story here: Ashley Dupre's lawyer is making some noises about Dupre's IP rights. Perhaps she owns the copyright in the much-republished photos of her, though that would have to be by transfer unless she took the pictures of herself. If she did assert copyright claims, news organizations might have a harder fair use case than in Núñez, another suggestive-photos case. In Núñez, whether the subject of the photos ought to have posed for them was the focus of the news story; Dupre's photos are not the newsworthy event themselves, but rather are used to show people what Spitzer was buying. Nonetheless, their relation to newsworthy events, and the generally limited market for MySpace photos, might well justify a fair use finding.
Dupre's potential publicity rights, which the lawyer's quotes seem to focus on, are stronger in some ways, but much weaker in others. Specifically, news reporting use of her identity will not violate her publicity rights no matter how much her cleavage is used to sell papers.
Another tidbit: the AOL story I linked to has a poll asking whether the use of the photos is "fair use," without defining that. Has copyright arrived in popular consciousness?
Here's my article on the role of sex and gender in fair use law.
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