Revenge Porn Victim Representation: What is a ‘Copyrighted’ Image or Recording

It is not only a relevant question to discuss with your attorney, but a critical one in your pursuit to remove Revenge Porn uploaded to the internet and posted online to YouTube, Instagram, Tumblr, Pinterest, Snapchat or Facebook. Do all Revenge Porn and other non-consensual intimate images posted online constitute copyrighted materials? The simple answer is no. Not all Revenge Porn constitutes copyrighted material merely because you found it through a search on Google or Yahoo. Because of this, copyright law won’t always be a viable solution if you are a Revenge Porn victim whether you or your tormentor reside in New York or elsewhere. That does not mean you won’t have the means to protect yourself with the right lawyer experienced in cybercrimes such as Online Harassment, Sextortion and other offenses, but knowing whether you have the ability to remove offending naked or sexually explicit videos or pictures as copyrighted materials is a central issue to the larger strategy you pursue. To that end, there are two ways intimate images or videos could be considered copyrighted: (1) you registered the material with the United States Copyright Office (unlikely) or, (2) you took the image or video yourself.

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Any image or video you take – regardless if it is you naked or of anything else – is copyright protected the moment you snap it with your iPhone and it is created and fixed in a tangible form. This is no different in the realm of Revenge Porn, Online Harassment, Cyber Stalking and Sextortion. Whomever took the photograph or filmed the video owns the copyright to the material. Most Revenge Porn images, an estimated 80%, are “Selfies.” Selfies are when the subject of the photograph and the photographer are one in the same. When you take a picture of yourself, even if you text, email or physically hand over the image to someone else, you are the owner and have copyright protection. The recipient does not own the image and using the image in any form without your consent is copyright infringement. Copyright law protects the “author” of a Selfie (published or unpublished) just as it does for artists, filmmakers or writers. For victims of Revenge Porn that involve a Selfie, self-filmed sex, or an explicit or intimate video, copyright law may be a remedy to remove a posting from Google’s, Yahoo’s or Bing’s search engines and the internet. Equally important, this mode of attack will likely be part of a larger strategy to hold your abuser accountable in the Criminal, Family and Civil Court systems.

Revenge Porn and Copyrighted Images: A Deeper Dive

If you took an intimate photo of yourself – your breasts, penis, vagina, nipples or anus – using your iPhone and texted it to your significant other, spouse, or anyone for that matter; it would be a reasonable expectation to assume that the image you shared was private. Unfortunately, for whatever reason, that relationship sours and shortly, or even long after its dissolution, your now ex-husband, ex-wife, ex-boyfriend or ex-girlfriend, feels jilted and decides to share that photo or video. No longer private, the image doesn’t merely pop up on pornography sites such as Pornhub, but thanks to Google’s search engine capabilities, it appears to populate the entire internet from corner to corner (if such a thing existed). Not lost on you, just because you decided to share that personal, sexual or erotic recording with a former lover does not give him or her the right to redistribute the same by publishing, duplicating or disseminating it online. Your ex still does not own the image or its copyright and therefore he or she has no ownership rights to its publication whether on Instagram, Tumblr or print media for that matter. This is where copyright law, and attorneys with intimate working knowledge of Revenge Porn statutes, would provide you some protection and a means to have the content removed.

Revenge Porn, Copyright Law and Derivative Works

Copyright law also covers “derivative works” of photography no matter if its your breasts, backside or other sexually intimate areas. A derivative work would be a new version of the work or one that includes aspects of the already existing copyrighted picture or image. This can include reproductions, dramatizations, and fictionalizations of preexisting copyrighted work. If you take a Selfie masturbating or something less risqué as a “nipple shot” and someone then takes that image and manipulates it, this is considered infringement on your original copyrighted work.

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Let’s say you took a Selfie and then used that image as a profile picture on a social media website. Innocent enough, right? Unfortunately, someone takes that image and transposes part or all of it onto a picture of something or someone else. This is considered a derivative work based off your “original work” and violates copyright law. It may sound harmless but when it is your face attached to a nude body or a person engaged in a sex act, it constitutes Revenge Porn and warrants a stern and convincing confrontation from your lawyer. You don’t need a Revenge Porn attorney to explain to you, the victim of this childish yet hurtful conduct, that these images are often as humiliating and damaging as any real intimate photograph or video shared without your permission.

Although it is scary to consider, it is important – if not essential – to know that the mere creation of intimate images can put you at risk of becoming a victim of Revenge Porn. Abstaining from sharing erotic photos or explicit videos is one way to maintain control over personal content. Right or wrong, however, all of us know that its human nature to trust those closest to us only to later bear the consequences of our innocent mistakes. Even if we do our best to keep these images and videos close, devices can be hacked. Alternatively, a person who has access to content or data you share consensually may also access those materials, recordings and pictures that are intimate or sexual without your permission. Copyright law would apply here as well. The point is, if you took the image yourself, you own the material. If you own the material, you are the sole decider on if, when, and how it is shared, not the man or woman hiding behind a computer screen.

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When compromising, humiliating, degrading or plain old sexually explicit content appears on the internet, it is in your best interest to know if copyright laws apply and how you can use it to your benefit and protection. Only then can you identify the best course of action to clean up your online reputation, pursue a lawsuit, and push to have your abuser arrested and prosecuted to the full extent of the law should you choose to do so. No matter whether you want to keep things quiet, turn to law enforcement, sue your victimizer or a combination of any of these options, arm yourself with the experience and knowledge of Saland Law’s Cyber Harassment lawyers, Sextortion attorneys, Revenge Porn advocates, and former prosecutors to put an end to your nightmare.

Call the New York Revenge Porn lawyers, Copyright attorneys and former Manhattan Assistant District Attorneys at (212) 312-7129 or contact us online today