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.
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