Copyright and California’s anti-‘revenge porn’ law

October 11, 2013

fistRecently, California enacted a law making it disorderly conduct for a person to distribute “involuntary pornography.”

Involuntary pornography entails the distribution, almost always via the Internet, of intimate photographs of someone without that person’s consent. The target of this law is “revenge porn,” the phenomenon of spurned exes posting once-private photographs and video to the web in order to shame and humiliate a former romantic partner.

(From what I have read, it sounds like this law puts up a good front, but is not likely to result in many convictions.)

Setting aside the issue of why anyone would want to do something so mean-spirited, what got me thinking here was if this law conflicts with copyright.

Copyright attaches automatically when a creative work is affixed in a tangible medium (and I believe committing an image to a cell phone’s camera roll counts). Copyright controls, among other things, the right to distribute that image. So, if you take an intimate picture of your ex, would you not have the rights to distribute that image more or less however you would like?

Enter the right of publicity. This concept gives subjects of photographs and videos something of a right to control his or her own image, even when it comes to a work  to which someone else holds the copyright. This is why professional wedding photographers, for instance, ask the happy couple to sign a release so the photographer can use photographs taken at the wedding in promotional and marketing material.

The right to publicity has entered the conversation regarding the distribution of previously private intimate footage before. In Michaels v. Internet Entm’t Group, Inc., the court enjoined the defendant video-distribution company from releasing stills of Tommy Lee and Pamela Anderson’s infamous sex tape on the Internet, finding that Lee’s right to control his image overrode the plaintiff’s copyright privileges (spurious as they were, in that case).

Interestingly enough, copyright’s ability to control distribution might answer one the chief criticisms of the law – that it only pertains to photographs taken by someone else, and not to “selfies,” or photographs a person takes of him or herself.

Copyright may be the answer to that omission because if a person finds out that a photo he or she took is being used without his or her permission, copyright grants the right to enjoin distribution or exhibition of that photo.