Expert reveals if Amber Heard can sue Elon Musk after he posts pic of her as 'Mercy' without her consent
LOS ANGELES, CALIFORNIA: Elon Musk has sparked controversy by sharing an intimate cosplay photo of Amber Heard, dressed as the video game character Mercy from 'Overwatch'.
Reportedly the 'Aquaman' actress did not grant permission for Musk to share the photo, which was originally intended to remain "private," as per Page Six. Since then the image, posted on the Tesla billionaire's X account on Wednesday, September 13, has ignited a debate about privacy rights and consent, with some urging Heard to sue Musk.
Why did Elon Musk post Amber Heard's cosplay picture?
The backstory behind the controversial image emerged from the tech magnate's new biography, titled 'Elon Musk.' The biography revealed that during their relationship seven years ago, Musk had compared Heard to Mercy, his favorite character from the video game Overwatch.
In response to this, Heard spent two months designing and commissioning a complete Mercy costume to surprise Musk with. Musk himself confirmed the incident, responding to a tweet about the book by stating, "She did dress up as Mercy. It was awesome."
He then shared the revealing photo of Heard, dressed in the white Mercy costume complete with a halo, wings, and suspenders. The controversy surrounding the incident has raised questions about the potential grounds for Heard to pursue legal action against Musk.
Can Amber Heard sue Elon Musk?
The jurisdiction in question remains unclear, as it is uncertain in which state the involved parties resided at the time the photograph was taken.
However, as a general rule in the United States, the copyright for an image typically belongs to the person who captured the photo, presumably in this case, Musk,
Nevertheless, "it is possible that Heard took the photo herself and sent it to Musk, which would mean she is the owner of the copyright and has a stronger claim against Musk’s unauthorized use of her image," according to lawyer Kimberly C Lau, who is Partner and Chair of the Title IX and College Discipline Practice.
Regarding claims of defamation or false light, it appears unlikely that such claims would be viable since there is no inherent falsehood associated with the photograph. The likelihood of alleging emotional distress claims is also uncertain, as per Lau.
Some states require evidence of physical manifestations of emotional distress to support a negligent infliction of emotional distress claim.
Lau says: "If Heard can demonstrate such harm, it may be reasonable to argue that these damages were a foreseeable consequence of Musk posting the photo on his X account.
However, for intentional infliction of emotional distress claim to stand, Heard would not only need to prove that the conduct was extreme and outrageous but also that Musk intended to cause her emotional distress.
This appears unlikely as Musk's actions seem more aligned with self-promotion and supporting his book, rather than intending harm towards Heard."
Further, Heard may have a potential invasion of privacy claim depending on the applicable state laws.
Lau adds that, to succeed in such a claim, she would generally need to establish three key points: "that matters concerning her personal life were made public; that this publication would be highly offensive to a reasonable person with ordinary sensibilities; and that the published matter was not of legitimate public concern.
As an actress, certain aspects of her personal life and daily routines might be of legitimate interest to the public. However, she might still be entitled to keep more intimate details of her life private."
Will Elon Musk be protected by the fact the photograph in reference is part of his book?
Lau remarked that in Musk's biography, he provides an understanding of his mindset at the time of posting the photograph, which was to boast. In this particular context, he may have established a level of legal protection for himself.
Internet urges Amber Heard to sue Elon Musk
A user tweeted, "Amber heard should sue Elon musk for defamation." Another commented on Facebook, "1) fucked up he's releasing private photos of people who used to trust him 2) she's honestly nailing it."
Another chimed, "She’s about to recoup that money she lost to Johnny." A user claimed, "I seen the pics. Shes staring directly into the camera. Im sure she gave consent to take pics but to post, definitely not."
"Okay im definitely not of fan of ambers but this is wrong. he did not have her consent to post her private pictures. regardless if yall think its hot or she should be happy. . . guys its her body and she dont want people to see it like that, it was meant for his eyes and his eyes only. its disturbing that its being shared all of the internet for MILLIONS of people to see," read a comment.
Another added, "This seems... private."
Amber heard should sue Elon musk for defamation 🤷♂️ https://t.co/kzaTyF9tXV
— Mickeyscryptofits (@Mickeyllc) September 13, 2023