Head-Swapped Photographs & Copyright: A New Zealand Perspective

AuthorS. Che Ekaratne
PositionLecturer, School of Law, University of Canterbury
S. C E *
With increasing advances in photo-manipulation technolog y, the digital
alteration of personal photographs is becoming more f requent. One type of altered
photograph is the “ head-swapped photograph” featuring one person’s head and
a dierent person’s body as a result of combining portions of two photos. is
article examines to what extent New Zealand copyright law can protect against
the unauthorised creation and dissemination of head-swapped photographs.
While New Zealand copyright law provides many advantages in this regard, it
also presents some challenges. e article identies and evaluates some of these
challenges, using an example scenario of a real-life head-swapping incident
in New Zealand. e article goes on to posit a sug gested approach specically
applicable to the infringement analysis of a head -swapped photograph and applies
this approach to several scenarios. While this suggested approach is with reference
to New Zealand law, it may also be helpful in other jurisdictions with similar
copyright regimes.
I. I 
In the past, options for changing or manipulating a person’s photograph
were usually limited to physical alterations, such as drawing a moustache
on the photographed face or gluing on a photo of a dierent person’s head.
With emerging technolog ical de velopments, however, the potentia l for
photo-manipulation is now both more sophisticated (in terms of the degree
of alteration possible) and more simple (in terms of the ease of photo-
man ipulation softwar e).1 Furthermore, the distribution of altered images ca n
now be faster and broader due to the internet and social media.
1 For a summar y of technological photo-a lteration processes, see R aphael Winick “Intellec tual
Property, Defamat ion and the Digital A lteration of Visual Ima ges” (1997) 21 Colum-VLA JL
& Arts 143 at 150-152.
* Lecturer, School of Law, University of C anterbury. e author th anks Profes sors Ursula
Cheer, Stephen Todd and the anonymous rev iewers for their helpful comments . e author
also tha nks Wendy Smith for her kind assist ance with newspaper sourc es.
40 Canterbury Law Re view [Vol 23, 2017]
One type of photo-manipu lation involve s substituting a photographed
individual’s head with a dierent individual ’s head, or substituting a
photographed individual’s body with a dierent body. is type of altered
photograph thus features one person’s head and a dierent person’s body as
a result of combining portions of two photos. Such photographs are referred
to in this article as “head-swapped photographs”. With modern photo-
manipulation technology, such a head-swapped photograph may not be
immediately obvious: some viewers may believe it to be an unaltered photo
of a single individual. is is especially likely because, unless an alteration is
visually obvious, we usua lly assume that a photograph depicts reality.2 Altered
photographs can therefore “present dierent legal and artistic issues than any
previously known method of creative expression”.3
e creation and distribution of head-swapped photos without consent
may result in emotional, reputational, or nancial harm to t he individual/s
in quest ion.4 Such unauthorised alteration often occurs in relation to people
who are in the public eye, such as entertainers and politicians. For instance,
a 1971 magazine published a photograph featuring the actor Cary Grant’s
head superimposed on the body of a dierent man.5 Similarly, in 2006, a
New Zealand newspaper published a photo composed of lm director Lee
Tamahori’s head and a Wellington performer’s body.6 A more recent head-swap,
from 2016, involved the actress Meghan Ma rkle after she was romantically
linked to Prince Harry. Photographs of her head were “superimposed on to
the body of a porn star [and] were published on an X-rated site”.7 With respect
to such well-known individuals, “the use of digita l technology gives … the
ability to create images of celebrities that are far more damaging t han any
actua l photograph ”.8
is kind of unauthorised photo-manipulation is not, however, limited to
‘celebrity’ individuals: it could happen to anyone. For example, an employee
distributed to co-workers photocopied images featuring his super visor’s head-
photo superimposed on sexually-explicit female bodies.9 Such unconsented
alteration is only likely to become more frequent with the increasing ease of
image-ma nipulation through technological advances.
2 See Winick, above n 1, at 148.
3 At 148.
4 See Carissa Byrne Hes sick “e Rig ht of Publicity in Digita lly Produced Images: How the
First Amendment is B eing Used to Pick Celebrities’ Pockets” (20 02) 10 UCLA Ent LR 1 at
4-6; Peter Jones “Ma nipulating t he Law Agai nst Mislead ing Imager y: Photo-Montage and
Appropriation of Well-Known Pers onality” (1999) 21(1) EIPR 28 at 28.
5 Grant v Esquire, Inc 367 F Supp 876 (SDNY 1973).
6 Kristia n South “Tamahori Shoc k New Sex Clai ms” Sunday News (5 Febru ary 200 6) at
1-3. e head-swap was identi ed in Liz Smith “ at’s my dress, Lee” e Wellingtonian
(16February2006) a t 3.
7 Felicity Cross “Meg han Markle ‘TOPLESS ’ pics shock - internet wags super impose her head
on porn stars body ” (Daily Star, 6 November 2016) .
8 Hessick, above n 4, at 4.
9 Bowman v Heller 420 Mass 517 (1995).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT