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Sex, Lies, & Sex Tapes

Sex, Lies, & Sex Tapes

October 17, 2014
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Sex, drugs & rock ‘n roll. That used to be the unofficial motto of Hollywood. And it worked. For years, the so-called scandals of celebrities in public were enough to keep tabloid headlines fresh, interesting and attractive to readers. Now though, it’s 2014: we’ve seen it all and it is no longer enough to simply report on what celebrities are doing in the public eye. A new unofficial motto has taken hold of those that fancy themselves the gatekeepers of celebrity information: sex, more sex, and leaked private media.

In recent times, not only have there been a rash of leaked photos from consumer-driven websites like 4chan, we’ve also lately seen stories of big name production labels, such as Vivid, considering the release of celebrity sex tapes. Rapper Iggy Azalea is at the center of the most recent controversy, with reports that a former boyfriend is shopping around a sex tape involving the entertainer to various media outlets including Vivid Entertainment.

Images or videos released to the public which were not originally meant for public consumption bring with them a wide variety of legal issues and pitfalls. That being said, there are four main issues in this realm which should be noted for anyone considering publishing this increasingly popular category of material.

Copyright: Initially, the person who created the media presumptively owns the copyright in the media. Sounds simple enough, right? Not exactly. This clear principle can quickly be made muddy, given the way we all create copyrightable “original works of authorship” these days. For example, consider the famous case of the Ellen DeGeneres Oscar Selfie. DeGeneres licensed use of the now widely known photograph to the Associated Press. But did she own the rights to license? It is unclear. DeGeneres is the one who got all the famous stars together, posed them, and set the scene for the photo. However, she was not the one to click the shutter button on the phone: Bradley Cooper was. The traditional presumption is that the photographer – meaning, very literally, the one who clicked the shutter button – owns the copyright and can distribute it.  Additional confusion arises when the photographer is acting at the specific request of another – particularly without a ‘work for hire’ agreement. Within the rash of leaked celebrity photos on 4chan, this principle would mean that the copyright in each of the selfies was owned by the celebrity who took the picture, providing that individual with a strong intellectual property case to go after anyone who published the images. Conversely, however, in the case of Iggy Azalea, if her former boyfriend shot the video, he would have a good argument as to ownership of the copyright in that case. That’s not the only consideration for leaked media, however…

Publicity/Privacy/Commercial Exploitation: Even if Azalea’s former boyfriend properly owns the copyright, Azalea, as the subject of the video, also maintains rights to control the publication of her personal depiction in the video. A model or subject depicted in media has a right to profit from the display of their ‘image and likeness.’ This is usually called the right of publicity; or sometimes, the right to commercial exploitation, and is separate from the copyright. If the recording was done in secret, there may be privacy rights at play as well. All of these rights would typically need to be waived by execution of a model release. If not, then the individual depicted in the video retains the rights, and can sue for violation of those rights. Naturally, with celebrity sex tapes, there typically is no model release signed before the ‘performance.’

Section 2257 Records: The elephant in the room regarding celebrity sex tapes is compliance with 18 U.S.C. § 2257.  As virtually all producers of erotic material know, Section 2257 imposes an obligation to review and compile certain performer identity and age documents prior to filming and/or publication. If those records were not created beforehand (which rarely, if ever, happens with a private sex tape or leaked content), the content is presumptively illegal to publish in the absence of accompanying records. The original producer must keep the original records, and all secondary producers (including webmaster) must keep copies of the records, along with generating their own records, such as the URL’s associated with the person depicted in the video. A notice of where the records are kept must be associated with the video, in the manner required by the statute and regulations.

Publication Risks: What happens if you publish a sex tape without 2257 records? The answer may depend on your role in the publication process. The original producer of the material, and the person responsible for initially uploading or publishing the material on a website, are clearly responsible for any non-compliance, which can include a multi-year prison sentence. So how are all these images being published on the Internet, presumably without 2257 records or model releases? Often, the content is uploaded by an anonymous customer of a ‘user generated content site’ such as a tube site, or posting forum like 4chan. The operator of the site will assert a Section 2257 exemption, designed to protect hosts and social networking sites from liability, and excuse their compliance with 2257 records maintenance obligations. The validity of the exemption depends on whether the site operator was actually involved with soliciting the sex tape upload; or in some cases, actually posting the content. If that activity can be uncovered, the site would almost certainly fail in asserting any attempted 2257 exemption. If the posting was done through a legitimate, unsolicited third party user upload, the site may be off the hook for 2257 compliance. Once the content appears online – somewhere – as user generated content, other ‘indexing sites’ link to it, categorize it and reproduce it, on a multitude of other sites; which ultimately display and drive traffic to the user-uploaded file. Section 230 immunity and DMCA safe harbor typically protect the tube sites and indexing sites from monetary liability for violation of publicity rights, privacy rights and copyrights, with respect to legitimate user uploaded or indexed content. All of this anticipates that the individuals depicted in the videos were over 18 years old when the content was created. If not, none of the exemptions, immunities or safe harbor protections will help the publishers with regard to child pornography allegations. Failure to report such content, once being made aware as website operator, is also a violation of federal law; Section 2258A.

Publishing sex tapes and leaked celebrity content is risky business, particularly in the absence of Section 2257 records or model releases. Celebrities have money and power…and lawyers. They can afford to enforce their rights, and may have enough influence to get law enforcement interested in pursuing criminal investigations. While some online service providers may be able to rely on federal law to skirt liability for the publications, any involvement in soliciting, posting or producing this category of erotic content generates significant legal risks.


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