A California appeals court has ruled in favor of erotic photographers and models in a piracy case involving a defendant who stocked his Internet site by copying some 417 erotic photographs without permission and then posting them on his site.
Plaintiff's attorney David L. Amkraut says this ruling now makes it easier to sue intellectual pirates. "Victims of picture pirates now have a straightforward and practical way to sue infringers in the California State court," he says. "Models now have a powerful and straightforward remedy against image thieves…There is now a much stronger deterrent to image privacy, since thieves must now fear lawsuits in California state court as well as copyright suits in federal court."
The plaintiffs were KNB Enterprises, who own and operate www.webvirgins.com, a a content provider which also helps newcomers get established in the adult Web business. The defendant, Greg W. Matthews, operates JustPics.com, which Amkraut described as a pirate Web site.
The plaintiffs won by way of California's right-of-publicity law of 1971, which was amended in 1982 but little used against image pirates because "some of the law hadn't yet been fully settled by the courts," Amkraut says. "Because of this lack of clarity and settled law, a well-funded defendant could throw up a cloud of legal technicalities."
The right-of-publicity guarantees one's right to control commercial use of one's own likeness and becomes involved when a model signs a release - allowing other people to use her likeness. "Because the model had assigned her publicity rights when she signed the model release," Amkraut says, "the victimized website owner/photographer had the right to sue."
The pirate in question argued the plaintiffs could only sue in federal court under copyright law. He prevailed in district court but the appeals court has overturned that ruling, declaring a model's likeness is not copyrightable "even though embodied in a copyrightable work such as a photograph."
Amkraut says the appeals court ruling means suing for right-of-publicity protection will be quicker and "more straightforward" from now on. "The model can assign her rights (of publicity) to the photographer, who then has a right to sue over misuse of the photos," he says. "The photographer thus has a practical way to protect his images even where a copyright lawsuit is not feasible."
