Author Archives: Gary Nissenbaum

Does a Person Have a Copyright in Her Picture if She Has Not Obtained a Registration from the United States Copyright Office?

Does a person have a copyright in her picture if she has not obtained a registration from the United States Copyright Office? The answer is yes and no.

Generally, a person will have a common law copyright in a picture that they have taken. A good example is a “selfie,” i.e. a picture taken of oneself with a cell phone. Under certain circumstances, the common law will provide enough rights to allow someone to send a cease and desist letter if a picture is being used without consent.

However, the better approach is to file an application with the United States Copyright Office. The reason is that this provides for enhanced protections (statutory damages and attorney’s fees reimbursement).

© 2014 Nissenbaum Law Group, LLC

Are Internet Publishers Responsible for Advertisements for Potential Sexual Liaisons with Minors?

Are internet publishers responsible for advertisements for potential sexual liaisons with  minors?  In the middle of last year, a US District Court for the District of New Jersey found that a New Jersey Statute creating such responsibility was likely unconstitutional. After that ruling, the parties negotiated and earlier this month, they settled. As part of the settlement, there will be a permanent injunction prohibiting the statute from being enforced.

The case, Backpage.com LLC v. Hoffman et al., United States District Court for the District of New Jersey (Civil Action No.: 2:13-CV-03952), involved a challenge by Backpage.com and Internet Archive seek to avoid punishment for posting such advertisements. The statute in question, N.J.S.A. 2C:13-10, New Jersey’s Human Trafficking Prevention, Protection, and Treatment Act, sets forth strict anti-trafficking laws. It states,

A person commits the offense of advertising commercial sexual abuse of a minor if:

(1)   the person knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor; or

(2)   the person knowingly purchases advertising in this State for a commercial sex act which includes the depiction of a minor.

Violators could be guilty of a first-degree criminal offenses. A publisher could not hide behind the defense that they were unaware of the depicted person’s age without substantial proof; they would need to demonstrate they made a legitimate attempt to determine the minor’s age by requiring identification.

Backpage.com and Internet Archive proposed an order to permanently enjoin enforcement of N.J.S.A. 2C:13-10. They wanted to stop its enforcement perpetually on the grounds that it violated the Communications Decency Act (which treats online service providers as not responsible for third party materials) and the First and Fourteenth Amendments. They claimed the provision violated free speech and due process as well as imposed criminal liability without proof of intent. They also asserted that it would be impractical to demand identification of everyone posting such online advertisements.

Ultimately, the parties settled for a permanent injunction preventing enforcement of the statute.

© 2014 Nissenbaum Law Group, LLC

What Should the Damages be in a Case Involving 18 U.S.C.§ 2259 (Possession of Child Pornography)?

How much restitution should be imposed for the possession of child pornography?  The federal mandatory restitution statute, 18 U.S.C.§ 2259, appears to have the answer. It states that a defendant shall pay a victim of child pornography the full amount of the victim’s losses, which is  defined as follows:

For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for

(A) medical services relating to physical, psychiatric, or psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care expenses;

(D) lost income;

(E) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the offense.

18 U.S.C.§ 2259(b)(3).

But how should this very generic formula be applied? Under § 2259, a victim is defined as someone who suffered specified harm “as a result of” another’s unlawful conduct.  In other words, the wrongdoer’s harm must have caused the victim’s losses and therefore the wrongdoer is liable for the losses.  Causation becomes an issue where one individual is in possession of photographs depicting abuse and thousands of other anonymous people have access to the same photographs.  Obviously, the victim can be harmed by the fact that everyone has viewed the child pornography.  Therefore who should be on the hook for the full amount of the victim’s losses?

On April 23, 2014, the United States Supreme Court decided this issue in Paroline v. United States,          U.S.                 (2014). In that case, Mr. Paroline was convicted of possessing 280 explicit photographs of an underage girl who was referred to as “Amy.” The photographs depicting the abuse had been viewed several thousand times by others throughout the world.  The question was should the damages be assessed solely against Paroline; against everyone who viewed the images; or some combination of the two.  During oral argument, the Justices were skeptical that a reasonable formula could be reached to balance all the factors involved.

Writing for the majority, Justice Kennedy held that it was unfair to assess damages against the defendant that did not proximately stem from the injury, i.e. were not the proximate cause. The court was concerned about the remote nature of damages stemming from viewing images which the viewer had no role in producing. Nevertheless, the court did say that the trial judge could take restitution into account in assessing some level of damages, but again, proximate cause would have to be shown.

© 2014 Nissenbaum Law Group, LLC