Attorney General Kamala D. Harris Announces Arrest of Revenge Porn Website Operator

[Xithras]

82. No, your understanding of the law is incorrect.

Unless the person posting the photo has a release, signed by the person in the photo, they are not authorized to post the photo, and the web site may be compelled to take it down unless it can prove such a release exists.

That is 100% incorrect. Model releases exist to protect the photographer, and not the subject of the photos. They also have no LEGAL status whatsoever, and only exist to serve as defensive evidence in a civil suit. They also provide the subjects of the image with their only opportunity to limit the distribution of that image.

The law is pretty clear on this. When I take a photo, it belongs to me. Under federal law, the copyright for that image belongs to the photographer until and unless it is sold or assigned to someone else. The photographer owns ALL the rights to the image, and the subject owns NONE of them.

The only "legal" limitation comes into play when someone uses your likeness for trade or commerce. Even then, they can ONLY sue you if you are materially profiting from their image without compensation (this is the real reason that most photographers use model releases btw...they universally state that you're waiving your right to future compensation). We're talking about civil suits to acquire compensation, and not criminal sanctions. If the image is simply given away, or if it is used editorially, or if it is otherwise distributed without commercial intent, then the subject has no rights at all, because they have not been deprived of their fair compensation for the use of their likeness. You CAN sue them, but if they didn't make money off of it, you're going to have to prove to a court that your likeness had a cash value that you were deprived of. More importantly in the age of the Internet, the rights of the subject to sue are also limited to the person doing the initial distribution. If the copyright holder gives a likeness of you to a commercial website that distributes it, the website has committed no crime because they were simply republishing an image with permission of the copyright holder. Your right to legal remedy would be limited to suing the copyright holder directly.

The core problem with these kinds of sites comes down to three legal realities. 1) Copyright law says that photos belong to the photographer. 2) The Supreme Court says that images are speech. 3) Federal laws and the Constitution say that speech cannot be impaired unless it is slanderous or libelous (and consensually taken nude photos generally wouldn't qualify).

These three things make it very tough to crack down on "Revenge Porn" sites. If the photo was actually taken by the "ex", then the "ex" actually does have federally protected legal rights. That's what makes Harris' angle with this arrest so ingenious. She isn't actually attacking the photos, but the attachment of the personally identifying information TO those photos. That information runs afoul of privacy laws.

If we could block the posting of personal information to these photo sites, a lot of the problem would go away. Without exaggeration, there are BILLIONS of nude photos on the Internet. What makes "Revenge Porn" sites so bad is NOT the fact that the photo is available, but that they ALSO contain the personally identifying information for the person in them. When someone Google's that person, or when an employer does a background check, or a neighbor vets a sitter, attaching their name causes those images to show up, which immediately harms the person in the photo. Even if we CAN'T ban the posting of the photos, banning the attachment of identifying information would go a long way toward rectifying the problem. Without that information, the photo simply becomes another anonymous nude shot on the web, that could have come from anywhere in the world, and the odds of anyone connecting it to any individual person become infinitesimally small.