Using Copyright Law to Combat Revenge Porn

Few states directly criminalize revenge porn. Now, a novel use of copyright law may accomplish what the criminal law has largely been unable to do: Get the photos off the Internet.

Revenge porn, also known as nonconsensual pornography, is the distribution of sexually explicit photos without the victim’s consent. Typically, the intent is to shame or embarrass the victim, who is often an ex-spouse, lover, or friend of the person posting the photo. Victims have had a difficult time getting these images removed, both because of the dearth of laws criminalizing such conduct, and the expense of filing a civil lawsuit for invasion of privacy and other civil torts.

For more information on revenge porn, see Revenge Porn: Laws and Penalties.

Copyright Law and Selfies

Photos posted for revenge may be either those taken of another person, or self-portraits (“selfies”) that have been sent to someone else, who then posts the photo. California makes posting the photo of another person and someone else's selfie a criminal violation. Victims whose states do not criminalize the posting of a selfie have recourse only through an expensive civil suit.

Enter the creative use of copyright law. A photo (the selfie) taken by an individual is protected by copyright law, because it’s an original work of authorship, fixed in a tangible medium of expression. The person who takes the photo is the copyright owner, and has the right to control distribution (or prohibit it).

When a selfie shows up on a revenge porn website, the photo’s owner can demand that it be taken down, because its presence on the site is without the owner’s consent. Using the Digital Millennium Copyright Act, the owner can send a take-down notice to the site. Sending such a notice involves a simple letter. You can copy these samples for free, inserting information that is specific to your situation: See sample letters from The Electronic Publishing Industry Coalition and from The IP Watchdog.

The Limits of Using Copyright Law

The take-down process described above does not protect the person whose photo was taken by someone else, or whose picture was taken without her knowledge. Nor does it automatically give the victim any damages against the website for the unauthorized use. Any monetary recovery would have to come via a separate lawsuit, alleging damages. And of course, as with most things on the Internet, there’s no guarantee that the same photo won’t pop up on another site.

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