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Copyright Law as a Solution to Revenge Porn

Updating the law tends to be a slow, laborious process that often takes years. This can be a problem when the law attempts to govern advances in technology, which can happen at a much faster pace. Such a problem has arisen in the area of revenge porn. Revenge porn is a recent phenomenon that was spurred on by the advent of camera phones. The victim, usually female, sends a sexually suggestive photo of herself to a boyfriend, only to find it posted online after the relationship ends badly.

The issue is that, while this strikes most people as wrong, many states do not have a law that actually prevents it. Although Florida recently passed one and other states have as well, the reality of internet-based crimes like this is that it may be difficult to prosecute the image poster if they live out of state. In situations where the law has yet to catch up, creative use of current law, such as copyright, can help.

How Copyright Law Can Help

Copyright law is a branch of law that gives people the right to protect their artistic expression from being reproduced without their consent. At first blush, this may seem unrelated to the revenge porn issue, but copyright law covers photographs and videos. This means that victims of revenge porn can use it to control and try to stop the dissemination of their images, as well as potentially recover money for their troubles.

The first way that they can do this is through the use of a “DMCA Takedown.” A DMCA Takedown is a legal tool provided by the Digital Millenium Copyright Act that allows copyright holders to request websites to take down copyrighted material that someone else has posted there. If the site complies, then the law prevents the copyright holder from suing that site for infringement, since it considers the person who posted the image to be the violator.

However, many websites that host revenge porn make money by charging extortionate fees to have the images removed, which would not be in compliance with a DMCA Takedown notice. If this happens, then the victim could bring a lawsuit for copyright infringement against the website. Additionally, the victim can also sue the ex who originally posted their images, regardless of whether the site complies. If they prevail, they can get a legal document forbidding the further posting of the images, as well as damages of between $750 and $150,000 per picture.

Copyright’s Limitations

Unfortunately, because copyright law was not really designed for this problem, it has an arbitrary limitation. The victim has a much stronger claim if they took the photo themselves than if they posed for it. This is because the law recognizes the person who took the photograph as the copyright owner. There is at least one case suggesting that a person who acted in a video has a copyright in that, regardless of who filmed it, but that case has created a considerable amount of controversy.

Revenge porn is a delicate issue, but copyright law may provide some protection. If you have questions about whether it is the right option for you, contact a West Palm Beach copyright attorney at Pike & Lustig, LLP today.

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