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April 18, 2019
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Copyrighting Your Body: A Defense Against Revenge Pornography

By James J. Franklin, Emily Doan, and Olivia Levine*

When personal, intimate photographs or videos become exposed to the public via websites or other media, victims suffer immense loss and seemingly have little recourse to remove the content from these websites.  Such “revenge pornography” has become a reality in society today and it has significantly affected many victims’ lives.  Revenge pornography can be defined as sexually explicit images that are publicly shared online without the consent of the pictured individual.  This includes images captured and/or shared without the victim’s knowledge, images of a victim’s face transposed on a sexually explicit bodily image, hacked images, and images uploaded by an ex-partner.

To put these acts into perspective, here are some statistics from the Cyber Civil Rights Initiative:  1 in 10 ex-partners have threatened they would expose sexually explicit photos or videos of their ex online; 60 percent of those who have threatened to post the content have followed through on their threats; 90 percent of the victims of revenge pornography are female; 93 percent of the victims have suffered significant emotional distress due to being a victim; and 49 percent of victims have been stalked or harassed by website users who have seen the victims’ photos or videos.  Perpetrators sometimes post the victim’s name and contact information with the photo, or worse, link the victim’s social media accounts to images.  This allows strangers to contact the victim directly and often leads to harassment or stalking.

Current State of the Law
So far, 38 states and the District of Columbia have criminalized revenge pornography. Several of those criminal statutes, however, only punish the act as a misdemeanor, which may not serve as a great deterrent for these offenders.  For example, Pennsylvania’s revenge pornography statute punishes individuals who “without permission or authorization, knowingly or recklessly disseminate or distribute from the possession or control of another person, including from a computer, computer system, network, electronic device, or electronic storage system, a visual depiction of the other person in a state of full or partial nudity or engaged in sexual conduct.”  But the punishment for violating this statue is a misdemeanor in the third degree.  The offender is charged with a misdemeanor in the first degree if the victim is a minor or the offender is a repeat offender.  The punitive nature of these charges also depends on whether a district attorney is willing to prosecute the case.  Revenge pornography websites are meant to damage reputations and ruin lives.  To some, a misdemeanor charge may not be a sufficient deterrent in this situation.

Victims of nonconsensual revenge pornography have several legal actions they can pursue, including state voyeurism laws, defamation, and federal hacking laws.  A common aspect of revenge pornography, however, is that more than 80% of the photos published on these websites are selfies, meaning that the victim took the photo and sent it to another person consensually.  This aspect is significant because if a photo was given consensually, a victim may have a difficult time getting help from law enforcement. The victim may have an even harder time getting pornography websites to remove the images unless those images are registered with the United States Copyright Office.  Because revenge pornography often begins with a consensual photo, typical personal injury remedies may be insufficient to make the victim whole and remove the images from pornography websites.  Therefore, some victims have turned to copyright law as a way to fight back against revenge pornography, but copyright too has its challenges and limitations.

Using Copyright Law Against Revenge Pornography
Under copyright law, a person who creates an image is the author of that image and is entitled to the exclusive control of the image.  Upon creation of the image, the individual is granted a set of exclusive rights related to the image, including the right of reproduction and the right to display the image.  But in order to file a copyright infringement lawsuit when someone violates one of the author’s exclusive rights in that image, the author or creator must first register the image with the Copyright Office.  The process includes disclosure of the image to the Copyright Office as a “deposit.”  Accordingly, victims must disclose the whole image, without their faces or any part of the image redacted, to obtain copyright registration and enforce the victim’s copyright in the work.  Also, the work must be registered early, which is probably an unusual circumstance for victims only using the registration process to enable them to seek redress for revenge pornography.  If the image is not registered within three months of publication or prior to its infringement, the victim will not be able to recover statutory damages or attorneys’ fees for the copyright infringement under the Copyright Act—only actual damages.  Neither Congress nor the United States Supreme Court has addressed the copyrightability of pornography, but copyright law offers broad protection over “original works of authorship” regardless of their content. Victims have been successful in registering these pornographic images with the Copyright Office.

Limited distribution of a copyrighted work has no effect on the exclusive right of reproduction granted to the author. Accordingly, if a victim shared the sexually explicit photo with an ex-partner, that does not give the ex-partner the right to reproduce the photo on a pornography website.  Along with the exclusive rights granted to a copyright holder, there is a negative right that accompanies each of those rights.  These negative rights give the author the right not to exercise any of the exclusive rights under copyright law, allowing the author to make the choice not to reproduce or display the work. These negative rights are important to victims of revenge pornography because in most cases, a victim never would have shared those images if he or she did not believe he or she could control who saw the images.

In 1998, the Digital Millennium Copyright Act (DMCA) was passed as part of the Copyright Act to address digital copyright infringement, including copyright infringement that occurs on the Internet.  Under the DMCA, there is a takedown provision that allows victims to submit takedown requests to qualified online service providers whose users have published photos without the authors’ permission.  The process, however, may not be straightforward, and may not represent a complete solution.  Often, it is difficult to identify the exact entity that is hosting the content.  Further, a takedown request requires the victim to disclose his or her personal information to the website as the owner of the copyright.  This can often lead the website to “call out” the victim or encourage other users to submit photos of the victim to the website or other websites.  This can lead to a “Whack-A-Mole” problem.  Once a photo is removed from one website, it begins to pop up on other websites.  The takedown request also may not work if the website’s server is in a country that has no intellectual property laws or protection.  The owner of the server in a country with no intellectual property protection may refuse to comply with U.S. law and ignore the takedown request.

A challenge many victims of revenge pornography face is the protections that revenge pornography websites have under the Communications Decency Act (CDA).  Under Section 230 of the CDA, internet service providers (ISPs) are not considered publishers of the information provided on their websites by other information content providers.  This immunizes ISPs from civil liability and state criminal liability for content provide by users on the ISPs’ websites.  The ISP, however, must comply with a proper notice and takedown request to comply with the DMCA’s “safe harbor” provision for online service providers, or else the ISP faces contributory liability for copyright infringement.  Recently, there has been a movement to amend Section 230 of the CDA to remove protection for revenge pornography websites.  The amendment would also require ISPs to investigate claims of hosting non-consensual pornography and to act upon knowledge that they are hosting unauthorized pornography on their website.  While this would help victims have more legal recourse, it would not solve the “Whack-A-Mole” problem.  Once one user was told to take the image or video down, another user could post the same content until he or she was told to remove it.  The cycle of posting and sharing could continue.

Successes Under Copyright Law
In Jane Doe v. David K. Elam II, a woman in California was awarded $6.4 million in damages, one of the largest awards on record, in her civil suit against her ex-partner who published sexually explicit photos of her without her permission.  After Jane Doe, an adopted persona to protect her anonymity, learned her ex-partner was posting photos of her without her permission, she registered her ownership of the photos with the U.S. Copyright Office.  Because California’s criminal statute for revenge pornography only carried misdemeanor charges, Jane Doe decided to pursue a civil lawsuit under the theories of copyright infringement, online impersonation with intent to harm, stalking, and intentional infliction of emotional distress.  The court awarded her $450,000 in damages for copyright infringement, $3 million in damages for intentional infliction of emotional distress, and $3 million in punitive damages.  Although the copyright infringement damages award might seem small compared with the other damages awarded, the copyright infringement charge was available as a tool to help force the removal of the images from pornography websites.

A copyright owner may recover actual damages and the infringer’s profits attributable to the copyright infringement, or the copyright owner may elect to recover statutory damages before final judgment. Where it is difficult to prove damages and profits, the copyright owner is more likely to opt for statutory damages. A court may award statutory damages up to $150,000 per work for a copyright that was willfully infringed.

Future State of the Law
Currently, the law is lagging behind in its efforts to combat revenge pornography.  While copyright law and the takedown provisions are important tools for victims of revenge pornography, some feel that Congress and state legislatures need to catch up with the status of revenge pornography.  One suggestion has been to federally criminalize it.  Critics of federal criminalization of revenge pornography think the legislation will either be too broad and violate freedom of speech under the First Amendment, or the legislation will be too narrow and will include too many hurdles to overcome for a victim to establish the burden of proof.  Nevertheless, until further protections are available, copyright law may be an important tool for victims to use to fight revenge pornography.

James J. Franklin is a member in the Litigation, Personal Injury, and Transportation, Distribution & Logistics practice groups at McNees Wallace & Nurick LLC.

Emily Doan practices in the McNees Intellectual Property practice group where she counsels clients on trademark and copyright matters.

* Olivia Levine was a 2018 summer associate at McNees.

McNees Attorneys Speak About Employers’ Duty to Safeguard Employees’ Personal Information

In a series of speaking engagements, McNees attorneys are raising awareness about the Pennsylvania Supreme Court’s landmark decision in Dittman v. UPMC.  Decided in late 2018, Dittman held that employers owe their employees a duty to exercise reasonable care when collecting and storing personal and financial information.

The Dittman decision has far-reaching implications for all companies doing business in Pennsylvania.  Although Dittman addressed only employees’ personal information, the same reasoning suggests that entities have a duty to protect personal information of customers, clients, students, and other stakeholders.  The Court also called into question the viability of the economic loss doctrine, which bars tort claims involving only monetary losses.

Recognizing the importance of Dittman, McNees attorneys Devin Chwastyk and Thomas Markey recently moderated a roundtable discussion sponsored by the Law Offices of Peter J. Russo, P.C., the PBA In-House Counsel and Cybersecurity & Data Privacy Committees, the Central Pennsylvania Chapter of the Association of Corporate Counsel, and the Dauphin and Cumberland County Bar Associations.  On April 25, 2019, Devin Chwastyk and Carol Steinour Young will present at the Association of Corporate Counsel event “In-House Counsel ‘Defending the Corporate House’” in Harrisburg.  Following these events, McNees will host a webinar on May 8, 2019 to further discuss this significant case.  More information about this free webinar can be found here.

The purpose of these presentations is to discuss the Supreme Court’s ruling in depth and give practical guidance on how to protect information, respond to data breaches, and avoid liability.

© 2019 McNees Wallace & Nurick LLC
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