Revenge Porn Victim Claims Copyright Infringement to Have Photos Taken Down

The New York Times reported on January 29 about the efforts of the Cyber Civil Rights Legal Project, a pro bono clinic initiated by law firm K&L Gates. Lawyers from the firm, working pro bono, filed a suit on December 22, 2014 in the Central District of California against David Elam, who allegedly posted online intimate images and videos of his former girlfriend “Jane Doe.”

The complaint alleges, inter alia, that Defendant’s conduct amounts to intrusion and intentional infliction of emotional distress, but also that Defendant has infringed Plaintiff’s copyright. The case is Jane Doe v. DavidK. Elam II, No. 2:14-CV-9788 (CD California).

Revenge porn sites allow individuals to post naked images of their former girl friend or boy friend, often with a link to their social media profile and other personal information, including their home address. Most of revenge porn victims are female. A search of the victims’ names online will then invariably lead to links to the porn revenge sites, a click away from their intimate pictures and personal information to be seen, copied, and shared. This may lead to stalking and harassment from third parties, and may prevent the victims from finding a job, or even alienate family and friends, all, it should be noted, through no fault of the victim.

In this case, Defendant allegedly posted intimate images and videos sent to him by Jane Doe during their West Coast-East Coast relationship. The complaint claims that, after the two broke up in 2013, Defendant posted these documents  on various social media sites, dating sites, and pornographic sites, sometimes even indicating Jane Doe’s name, or a very similar one, her phone number, her school and home address.  

Plaintiff eventually registered her copyright in the pictures and videos. The complaint states that, by posting them online, Defendant has infringed her exclusive rights to reproduce and to distribute them, and that the infringement was willful. Plaintiff is asking the court for actual and statutory damages under 17 U.S.C. § 504(c), for an injunction prohibiting Defendant from further infringement, and to order him to destroy all copies of the protected works.

Can Copyright Law Protect Victims of Revenge Porn?

The New York Times article quotes Mr. Bateman, a K&L Gates partner: “Copyright is not designed to deal with revenge porn, it just happens to give you a remedy. But it’s not perfect and won’t be available in all situations.”

The Statute of Anne was an “Act for the Encouragement of Learning.” The Copyright clause of the U.S. Constitution gives Congress the power “to promote the progress of science and useful arts” by giving authors an exclusive right in their works. Should copyright be used to provide victims of revenge porn for a way to take down their intimate images and even be awarded damages?  

Why Copyright Law? Aren’t There Any Other Laws?

Porn revenge sites are protected by the Communication Decency Act (CDA), 47 U.S.C. §230, which provides a safe harbor to Internet service providers (ISPs) from speech posted by a third party: “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  

However, the CDA safe harbor does not protect ISPs if the information published infringes a copyright, and thus victims of revenge porn can ask ISPs to take down their photographs, as long as they own the copyright, using another federal law, the Digital Millennium Copyright Act, 17 U.S.C. 512. Under the DMCA, an ISP is provided a safe harbor, as long as it “expeditiously” takes down infringing material, 17 U.S.C. 512 (c)(1)(A)(iii).

Owning the Copyright of the Intimate Pictures

If the victim of revenge porn is the author of the naked photograph, the victim is the author. The threshold of originality necessary to pass for a work to be protected by copyright is quite low. While many selfies, in general, may not be original enough to be protected by copyright, one can nevertheless assume that the author of an intimate selfie will have given some consideration to the composition, angle, and lighting of the photograph, in order to appear as his or her most attractive self.

If a victim of revenge porn wants to sue her tormentor for copyright infringement, she must register her copyright, and thus provide a copy of the intimate pictures. While this may appear to be awkward, victims may nevertheless overcome that reservation for a chance to ask a court to have the pictures taken down and destroyed. The complaint filed by the Cyber Civil Rights Legal Project states that the complaint is filed to stop the Defendant “from continuing the deliberate terrorization of his former girlfriend Plaintiff Jane Doe. “

But what if the victim of revenge porn is not the author of the photograph? Harvard law school professor Derek Bambauer argued in a January2013 blog post that the victim may be considered a joint author of the work, as the subject is the reason people look at these images. This is an interesting suggestion, which may, however, lead to suits being filed by subjects of all sorts of photographs, whether intimate or not, claiming that their contribution made them a joint author.

Using Copyright to Suppress Speech

One remembers that last year, the Ninth Circuit held in Garcia v. Google that an actress, who had briefly appeared in the anti-Islamist “Innocence of Muslims” movie, may have a copyright interest in her performance. She was unaware at the time of the filming of its inflammatory nature, believing it was an adventure movie set in the desert. She had received death threats because of her appearance in the movie, but had not been able to have it taken down from YouTube.

In another example of an attempt to use copyright to suppress speech, Plaintiff in Raanan Katzv. Irina Chevaldina had registered the copyright of an unflattering photograph of him, which had been used by Defendant to illustrate blog posts highly critical of Plaintiff, and sued the blogger for copyright infringement. The Southern District Court of Florida granted summary judgment to the Defendant, reasoning this was fair use.

The fair use defense would certainly not be available to Defendants in revenge porn cases. It will be interesting to see if the Central District of California will be convinced by the copyright infringement argument presented by the victim and her attorneys. Regardless, one can only salute attorneys willing to represent revenge porn victims pro bono. 

Image of copyright is courtesy of Flickr user gaelx under a CC BY-SA 2.0 license.