Spitzer's "Kristen" and Copyright

As heat swirled around former New York governor Elliot Spitzer's dalliance with call girls, one's image was grabbed by media from her Myspace page and freely used. But it's a question whether that use was legal or an infringement of copyright. Photo District News has an interesting article on the topic. A number of lawyers they contacted said that the media's rights to do so are questionable:

"Whoever took that picture owns that picture," says New York attorney Nancy Wolff. "It's either an infringement or they [the news outlets] have to make a fair use argument."

Wolff says the news organizations probably decided the risk of a lawsuit was low. They also probably considered competitive pressure as other sources published the same photos. "It's a fast business decision," Wolff says.

As I understand it, one of the aspects of fair use is education - but that means that the contents itself of the copyrighted piece must be what is at issue. But the stories are not about the photos; they're about the alleged business arrangements between Spitzer and Ashley Dupre/Youmans (the latter being her actual name). So the photos of her are not the subject of discussion and education, and could well be seen as something whose commercial value has now been reduced, which means that "fair use," which could be an argument against infringement, is now a more remote possibility.

But there's one other question I don't see being addressed. Youmans's lawyer has been talking about copyright infringemnt, but who took the pictures? As Youmans was the subject, they wouldn't be her property, but that of the person who pressed the shutter button, and no one has been talking about that person or people, who would have had had to register copyright of the images and who would have standing for taking legal action.