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From the photojournalist’s perspective, it must have looked like the perfect shot: the interior of a family’s living room burnt to a crusty, darkened shell; the weary firefighter, eyes downcast in the background rubble; and two barely spared smiling dolls, laying inanimate on the charred sofa. But to the Lafayette, Calif., family who lost everything in the July 1999 fire, the photo published in the San Francisco Chronicle was an offensive public display of their private pain. Frances Cornell and Peter Rasimus sued the Chronicle for invasion of privacy, using an anti-paparazzi statute passed by the California legislature after the death of Princess Diana. They claim that the publication of the photograph, taken by photographer Kat Wade, caused them emotional distress when it was first published and again when it was published a year later after Wade won an award for it. The suit is unusual not only because the plaintiffs aren’t famous. They are not even in the photo. So far, San Francisco Superior Court Judge A. James Robertson II has agreed that the plaintiffs have at least the semblance of a case. On Oct. 6, the judge overruled the Chronicle‘s demurrer. Although their attorney readily acknowledges that the photograph shows neither hide nor hair of the plaintiffs, George Leal, of San Francisco’s Chan, Doi, Marshall & Leal, nonetheless contends they have a case under the law. The anti-paparazzi California Civil Code Section 1708.8, requires that the photographer be motivated by commercial gain, and that he or she be intent upon capturing the aggrieved individual “engaged in a personal or familial activity.” Leal says that because doll-collecting is an activity that is personal to Cornell, the image of her dolls inside her house is by extension tantamount to a personal depiction of her. “We’re arguing for an interpretation that includes something more than the plaintiff herself (be present in the photograph),” he says. To Leal, the act of engaging in a hobby does not stop simply because the individual is not present to be physically engaging at the moment the image is captured. Such a literal reading of the statute, he says, disregards its clear intentions to protect individuals from the portrayal of “personal and familial activity,” which according to the statute includes the “intimate details of the plaintiff’s personal life.” It’s not an argument that the Chronicle likes. “That’s akin to me making the same claim if you enter my home and take a picture of a book, because I collect books,” says Neil Shapiro, the San Francisco-based McCutchen, Doyle, Brown & Enersen partner representing the Chronicle. “How is that me engaging in it?” Shapiro says that Wade’s intentions were in keeping with legitimate newsgathering activities: to show the interior consequences of a two-alarm fire that consumed the efforts of 20 firefighters and blazed publicly in a residential neighborhood. At most, he adds, the lawsuit holds a defensible claim of trespassing. At least one media lawyer isn’t impressed with the plaintiffs’ case. Charity Kenyon, a media lawyer from Sacramento’s Riegels Campos & Kenyon, said the statute has very “particular requirements” which are not met in the story of how Wade took the picture. “That doesn’t seem to be what the statute was addressing,” she adds, “The mere portrayal of hobbies.”

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