Head-Swapped Photographs & Copyright: A New Zealand Perspective

• Author: S. Che Ekaratne
• Position: Lecturer, School of Law, University of Canterbury
• Pages: 39-63

39

HEAD-SWAPPED PHOTOGR APH S & COPY RIGHT:

A NEW ZE ALAND PERSPECTIVE

S. C E *

A

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).