Chinyere Obi
What about copyright protection for people’s nudes photos? In other words, would one be able to copyright their own bodies? The easiest answer is probably no. One can reach this result by viewing the subject matters protected under copyright such as “literary works,” “motion pictures,” and “sound records.”[1] This relates back to the legislative intent of the statute rooted in the Constitution granting Congress the power “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.”[2] Thus, on its face, it would go against legislative intent to start allowing people to copyright their own bodies.
However, there is a growing trend of people, mostly women, who are now registering their breasts and genitals with the U.S. Copyright Office as a way to combat revenge porn. Revenge porn, as defined by Merriam Webster dictionary, is sexually explicit or revealing images of a person posted on the Internet, without the consent of the subject, in order to cause them distress or embarrassment. A woman named “Hilary” was a victim of such harassment. After her ex-boyfriend posted nude photos of her online, Hilary registered over 100 different images of herself, both naked and wearing lingerie, and registered them with the U.S. Copyright Office as a means to demand takedown of the images her ex-boyfriend posted online. [3]
However, Hilary’s attorney, Elisa D’Amico, also hinted at another issue that arises: the problem of authorship. D’Amico notes “[i]f the person that took the photo is the victim, then they have more rights in terms of being able to pull down that information from online… if somebody else took the photo, which is often the case, then it’s a little bit more tricky.”[4] What D’Amico is referring to is that only the “author” of a work can register the work as an owner and in order to determine who is the author of a work, the creator must be (1) human and (2) must have control over the work’s creation.
For example, in Naruto v. Slater, the Ninth Circuit dismissed copyright infringement claims brought by the plaintiff, a crested macaque, over selfies he took with a wildlife photographer’s unattended camera.[5] The Ninth Circuit reasoned that, though the macaque had control over the camera, the macaque cannot bring copyright infringement claims because he is, literally, a monkey. On the other hand, in Lindsay v. RM.S. Titanic, the court held that a documentary filmmaker, though he did not physically shoot any footage for the documentary, was considered the author and owner of the footage because he asserted a “high degree of control” over the work.[6]
So let’s pose a few hypotheticals. Brittany and Brad are both adults and have been dating for a number of years. In scenario one, Brittany takes pictures of herself topless and sends them to Brad whom uploads the pictures on a porn website without Brittany’s consent. Following our analysis of authorship, it is clear that Brittany is the author of these pictures because she had full control over creating the pictures. Thus, she could rightfully title herself as the “author” of her nudes and could possibly bring copyright infringement claims against Brad if she registered her pictures with Copyright Office as an owner.
Now, in scenario two, let’s say that Brad was the one who took the pictures, with Brittany’s consent, but uploaded them onto a porn website without Brittany’s consent. Following the above, it’s highly likely that Brad would be considered the “author” of the pictures so if he decided to register the photos with the Copyright Office, he would be able to exercise the exclusive rights to copy, distribute, and display the images pursuant to 17 U.S.C. §106. Alternatively, say that Brad and Brittany worked together to decide how she would pose in her nudes and how the shot would be set up. Brittany, then, could argue that her and Brad created a joint work and intended to be seen as co-authors. Pursuant 17 U.S.C. §101, a joint work is defined as a work prepared by two or more authors with the intention that their contribution be merged into an inseparable or interdependent parts of a unitary whole. The benefit of this resolution is that, both are owners with equal and undivided interests in the whole work and have all the exclusive rights granted under §106. Thus, even if Brad uploaded the images on a porn website without Brittany’s consent, Brittany would still have the power to demand the website to take down the photo as a copyright owner.
Ultimately, one has to take a step back and think, was this really the purpose of the Copyright Act? To allow persons to exploit others under the guise of “art”? Is there some type of balancing between free speech on the Internet versus harassment? Ultimately, as discussed in the scenarios above, there is a heavy burden on the plaintiff whom, in addition to being publicly harassed by a jilted ex-lover, now has to re-expose themselves, literally, to a government agency in order to get some form of protection.
[1] 17 U.S.C. §102
[2] Art I §8 Clause 8 (Constitution)
[3] Erica Fink, To Fight Revenge Porn, I Had to Copyright My Breaks, https://money.cnn.com/2015/04/26/technology/copyright-boobs-revenge-porn/index.html (Accessed Feb. 14 2020)
[4] Id.
[5] Naruto v. Slater, No. 16-15469 (9th Cir. 2018)
[6] Lindsay v. Wrecked and Abandoned Vessel R.M.S. Titanic, (S.D.N.Y. 1999)