Federal: Copyright Infringement
The victim of the nonconsensual online publication of intimate photographs or videos may bring a civil suit for copyright infringement if the victim is the copyright owner of the material.
b. Text of the Statute
17 U.S.C. § 501:
“(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A (a). As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.
(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.”
- KNB Enters. v. Matthews, 92 Cal. Rptr. 2d 713 (Cal. Ct. App. 2000).
Procedural Posture: Plaintiff appealed trial court’s judgment granting defendant's motion for summary judgment stating that plaintiff's claim under Cal. Civ. Code §3344 was preempted by the federal Copyright Act.
Law: Federal Copyright Act
Facts: Plaintiff owned the copyright to explicit photographs of models and displayed them on his website. Defendant took plaintiff’s copyrighted photos without permission and used them on his own website for commercial purposes. None of the models were known celebrities and the photographers were not “masters of the genre.”
Outcome: Judgment reversed. Plaintiff’s claims were not equivalent to a copyright infringement claim and were not preempted by federal copyright law. Human likeness is not copyrightable even though contained in a copyrighted photograph.
- Doe v. Fortuny, Case 08 C 1050 (N.D. Ill. 2009).
Procedural Posture: Anonymous plaintiff sued defendant for publishing his photo on defendant’s website without his permission.
Law: Copyright infringement (among other claims).
Facts: Defendant allegedly posted plaintiff’s photograph on the internet after obtaining it through a “Craigslist Experiment” in which he pretended to be a woman seeking a “str8 brutal dom muscular male” for sex. Over 100 men responded, including plaintiff, providing photos and contact info. Defendant allegedly posted this material on his blog, RFJason and Encyclopedia Dramatica.
Outcome: A default judgment was entered for the plaintiff because the defendant failed to appear or answer. The judgment consisted of: $35,001.00 in statutory damages for violation of the Copyright Act; $5,000.00 in compensatory damages for public disclosure of private facts and intrusion upon seclusion; $32,262.50 in attorney’s fees pursuant to 17 U.S.C. 505; and $1,989.06 in costs. Defendant was also ordered to immediately comply with injunctive relief and remove and/or disable access, content and viewing capabilities of the plaintiff’s response to defendant’s ad, the copyrighted photograph and plaintiff's personal email address on defendant’s blog.
- Vogel v. Bennet, No. B 207248, 2009 Cal. App. Unpub. LEXIS 4840 (Cal. Ct. App. June 17, 2009).
Procedural Posture: Plaintiff appealed from summary judgment entered in favor of defendants based on preemption grounds.
Law: Copyright Act as defense—plaintiff’s claims were preempted by the Copyright Act.
Facts: Defendants produced videos of women in bikinis in exotic locations. The plaintiff is a model and spokesperson in many of the videos. Plaintiff claimed that she did not give defendants her consent to sell or merchandise her images in any form. Plaintiff alleged that her privacy rights were violated when defendants used her likeness in videos, advertising, and programs aired on television.
Outcome: Determined that trial court had erred because plaintiff’s name and likeness claims are not the subject matter of copyright law.
d. Practice Pointer
- In state court cases, a defendant may attempt to dismiss a valid appropriation claim by arguing that it is preempted by the federal Copyright Act.
- Another possible related claim could arise if there was a copyrighted song accompanying the intimate video. This possibility might include contacting the copyright holder and obtaining the rights for the purposes of bringing a copyright action, then sending a take down notice under the Digital Millennium Copyright Act (17 U.S.C. § 512), or pursuing a copyright action for statutory damages.