[This post also appears at Black Star Rising.]

The issue of fair use of copyrighted photographs has surfaced in the Eliot Spitzer scandal, with Ashley Dupre’s lawyer blasting media outlets for publishing pics pulled from the call girl’s MySpace page. High-profile attorney Don Buchwald said he would take steps “to protect Ms. Dupre from any unwarranted exploitation of her name, picture, voice or likeness for purposes of profit.”

Media outlets have responded that the photos are news and thus pass the test for fair use. As the AP said in defending its decision to run the pics:

The Associated Press discussed the photos obtained from the MySpace page in great detail and found that they were newsworthy. We distributed the photos that were relevant to the story. Those photos did not show nudity, nor were they explicit.

Buchwald, however, questioned how newsworthy the photos really were:

While the circumstances surrounding Governor Spitzer’s resignation are newsworthy, some publications, in violation of journalistic norms, have used the occasion of Gov. Spitzer’s political misfortunes as an excuse to exploit Ms. Dupre’s persona for commercial purposes.

Photo District News found some experts who stepped up to bolster Buchwald’s argument, concluding that the fair use argument is a “thin one.” Maybe, if I consulted enough law books, I’d agree with them.

But let’s get real here: The $4,000-per-hour genie is out of the bottle. Buchwald, Dupre and the photographer(s) who took the pics are out of luck. That’s simply one of the risks when images are posted on the Web.

By contrast, photographer Wesley Mann is sitting pretty right now. Mann did a topless shoot with Dupre and has sold the photos to the New York Post — obviously, for big bucks. Mann must be counting his blessings that those pics weren’t posted on Dupre’s Web site — or his own, for that matter. Otherwise, they surely would have been snatched on the grounds of fair use, too.

But to me, that’s not the most interesting issue that’s arisen out of the media’s latest fair use dust-up. I’m more intrigued by the the apparent hypocrisy of media outlets — particularly the AP — in the interpretation of fair use with respect to bloggers.

As Ken Shepherd at NewsBusters points out, on the same day the Spitzer scandal broke, the blog Confederate Yankee published an e-mail from the AP explaining the wire’s broad policy against bloggers using AP photos, including under circumstances that a reasonable person might consider fair use.

The AP was responding to controversy created when it threatened legal action against Brian Ledbetter’s Snapped Shot, a photojournalism criticism blog, for running AP photos without permission. Ledbetter was forced to take down his site temporarily to figure out his next move. He explained:

I’m currently in the process of going through and reviewing my archive, separating the photo-criticism from the general tomfoolery in my content as a result of the AP’s warning, which is a long and painstaking … task, but one that will hopefully allow me to bring back most (if not all) of the AP content that I’ve found specific problems with.

I can’t recommend enough that all bloggers need to read Gabriel Malor’s excellent explanation of “Fair Use” in the blogosphere. While nothing’s guaranteed to keep us out of the courtroom, following his advice would certainly help towards that end.

Would it be unfair to surmise that the AP went after Ledbetter (from among all the other bloggers running snatched pics out there) because it didn’t like the content of his criticism? We’ll never know.

But one thing’s clear: Fair use is a more muddled mess than ever.

[Image snatched from the Seattle Post-Intelligencer, which snatched it from Facebook.]

[The following post also appears at Black Star Rising.]

As I recently read photographer Nick Stern’s account of the mounting guilt that ultimately drove him to quit Splash Pictures, it reminded me of the quaint apologies we used to get from porn stars like Linda Lovelace when they left the adult-film business. Whatever the financial consequences, Stern proclaimed, “I can sleep at night.”

The media has latched on to Stern’s story as a cautionary tale on paparazzi excesses. A statement on one gossip site, Holy Moly, said that

a “definite change in the perception of paparazzi pictures” had encouraged the Holy Moly administrators to shy away from publishing pictures of celebrities with their children, those not “on duty” and stars “in distress at being photographed”.

The statement added of Stern:

When one of the biggest names in paparazzi jacks it in due to ethics and morals and the world’s biggest pop star gets her knickers photographed by 30 people an hour after being released from a mental institute, you know there’s a problem on the shop floor.

But let’s be real. If the death of Princess Diana didn’t change the way the paparazzi work, neither will wall-to-wall coverage of Britney Spears — even if it leads to her death.

Just this week, an inquest into Diana’s fatal car crash heard photographers admit to reloading their cameras and taking pictures of the princess and other victims from as close as 10 feet away. They admitted that they did not attempt to assist the victims or call for help.

So Britney, you’re on your own.

In the Fame Solar System, Being Hot Is All That Matters

Forget the momentary pangs of conscience. The trend lines point to paparazzi becoming increasingly prominent figures in the business of photography — and gaining respectability along the way.

Who knows? Soon the paparazzi may be indistinguishable in the public mind from traditional photojournalists — just as self-obsessed journos like Julia Allison and Sarah Lacy are viewed as Web-era Walter Cronkites by many.

In a culture where fame is viewed as an end in itself — the ultimate symbol of success, even more than money or power — a kind of fame solar system has emerged where the closer you are to the “sun” of the A-lister, the hotter you become by association. Which makes the idea of being a paparazzi more appealing today than being, say, a typical daily newspaper photographer.

Indeed, the role of the paparazzi has been glamorized to the point where “personal paparazzi” services are emerging for “private individuals who want to experience some of the trappings of fame.” As Portfolio reports:

For only a few hundred dollars a day, they’ll follow you around and make a big show of taking your picture. One of them, Celeb 4 A Day, even prints up a mock tabloid cover showcasing your “news.”

But that’s not all. You can now teach your children to crave fame and the attention of the paparazzi, too, with the new “Paparazzi Play Set” — equipped with ravenous photographers just itching to take scandalous pics of Barbie and Ken.

So don’t be surprised as you begin to see more TV profiles of paparazzi. Don’t be surprised to see more of them dating their subjects.

Today, despite Nick Stern’s quaint resignation, we don’t live in a Linda Lovelace world. We live in a Jenna Jameson world, a “One Night in Paris” world, where there’s no shame — as long as there’s fame — in being a porn star.

And so it is with the paps.

Ya never know.

Sadly, Philly newswoman Alycia Lane reportedly has been fired. And so the tale of the bikini-wearing, road-raging anchorwoman (which to this point has brought us more than 50,000 visitors seeking bikini pics) comes to an end.

[Story.]