Wednesday, December 10, 2008

Myths and legends of copyright

Here's a new one for me: "if it's your camera, it's your copyright." From an article in New York magazine about how to get compensated when you've been wronged:
A Jilted Ex Puts Nude Photos of You, With Your Name, on an Amateur Porn Site
... To get the photos taken down, find out your ex’s Internet-service provider, as well as the Website’s hosting company and domain registrant by going to whois .net. Call the contact numbers for all three and say, “The images were obtained without my knowledge or consent, are being used in bad faith, and this is a violation of federal copyright law.” (For future reference, all risqué pics should be shot with your own camera, so you can claim copyright.) Ben Butler, director of network abuse for GoDaddy .com, responds to 30 women with unwanted photos each week, and takes them down if they break federal copyright rule.
I'm incredibly sympathetic to the victims here, but what's described is probably going to be an abuse of copyright claims; it is highly unlikely that the subject of the pictures owns the copyright therein, unless you want to revisit theories of authorship to a pretty extreme degree. The procedure described may work, but if so it works because of sympathy for the victims, and the site's editorial decisions are protected by 230. A real copyright claim, by the way, can probably be better made by using the DMCA's notice and takedown provisions, which aren't satisfied by a phone call.

7 comments:

Michael said...

Wow. Interesting read thanks for that.

Some guy I went to HS with posted pics of his Ex-Gf on one of those sites. She never got them taken down though.

He wound up getting a little street justice lol.

Elizabeth Yalkut said...

I would think a lack of model-release would be a better way to accomplish the end at hand, not a copyright claim. Not that I know much about model releases.

Rebecca Tushnet said...

If it's not being used for a commercial purpose, then the subject may have no rights in it, so no need for a release form.

Bruce Boyden said...

Well, the trick for one of these things is just to throw everything at the wall that is not Rule-11 sanctionable. So I would add IIED, intrusion upon seclusion, and publication of true private facts, and maybe even false light (on the theory that the photo being posted there gives the false impression that the subject agreed to it). Heck, throw in prima facie tort if you've got it.

Re: copyright and ownership of the camera, I agree it's probably just confused, but maybe the idea is that you could make a work-for-hire argument, although that's sort of tricky if you're not paying for it -- but it doesn't seem crazy offhand that there might be non-compensated employment situations, despite what the D.D.C. recently said about Title VII. E.g., when you have a stranger take your photo in front of the Eiffel Tower. Then there's joint authorship, but I'm not sure where the copyrightable contribution is going to come from. Maybe the pose.

Rebecca Tushnet said...

None of that except copyright is going to get you a guaranteed response from the ISP, though, given 230. You'll have to ID the poster, possibly by filing a case against John Doe and then working your way through the host site and possibly others, though presumably it's often relatively easy to ID the original source of the photos.

And I really, really doubt that giving your SO your camera counts as WFH: there's no employment relationship, and no signed writing, and photos don't fall within the class of works for which one could sign a writing anyway. Joint authorship would be your best shot (so to speak), and in theory I will accept it could be done, but I am unaware of any decided case awarding joint author status to the subject of a photo. I'm willing to accept that the subject should sometimes be a joint author, but given the current doctrine it will be an uphill climb

Bruce Boyden said...

Right, I sort of got off-topic, the tort claims won't work against the hosting company. However, re: the hosting company, even if you don't have copyright claims, you can sometimes get a voluntary takedown if you point out a terms of service violation -- I've had luck with that once or twice. That seems to be what is going on with the GoDaddy situation reported in the article.

Re: WFH, it's not a strong argument, but a couple of the factors for employee status are satisfied -- e.g., your equipment. I'm definitely going to wonder about this the next time I hand my camera to a tourist. Maybe I'll pay them a dollar, and give specific directions about how to take the picture, and form a subjective belief that they are a temporary employee.

Rebecca Tushnet said...

Sounds like an independent contractor to me. You're not paying their taxes, after all. I also doubt it will help the situation described here; paying someone for intimate photos starts to get into heavily regulated territory for other reasons. I wouldn't want to have to keep age records of the models available for government inspection, for example.