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, 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 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. 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

Does 18 U.S.C. 2257 Violate the Fourth Amendment?

The Free Speech Coalition has obtained a landmark ruling applying limited fourth amendment protections to prevent unannounced inspections of records kept under 18 U.S.C. 2257.  Specifically, in Free Speech Coalition, Inc. v.  The Honorable Eric H. Holder, Jr, EDNY (09-4607) (July 18, 2013), the United States District Court for the Eastern District of Pennsylvania ruled that
[T]he Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard – the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.
Id. at 2.
          The basis for the ruling was that the government could not demonstrate that the requirement met the constitutional standard. As the Court stated, “[g]iven these two streams of evidence in the record – demonstrating advance notice would not undermine the regulatory scheme, but a lack of such notice significantly burdens producers who maintain records at home – the Court finds the regulations’ lack of a notice requirement, as to searches at bona fide residences, unreasonable …” Id. at 69.


          The Court focused on the fact that many producers of adult content keep the records in their homes. Therefore, the requirement that the FBI be allowed to inspect the records without advance notice meant that the residents would be burdened by the need to remain on premises to allow access. This burden was found to be unconstitutional.
© 2014 Nissenbaum Law Group, LLC

Do Revenge Websites Violate 18 U.S.C. 2257?

18 U.S.C. 2257 generally serves as an insurmountable impediment to posting a person’s sexually explicit photographs on a revenge porn site. These sites consist of video and still pictures that are posted without the consent of the person being photographed. Normally, they stem from either (a) former lovers who received the pictures for their private use when the relationship was still viable or (b) spurned suitors who wish to take out their anger on the person whose photographs they happened to obtain.

Either way, it is a virtual certainty that 18 U.S.C 2257 will not be complied with; it requires the photographed person’s identification to be provided to a custodian of records. Since the person being photographed presumably did not agree to have the photographs posted (or may not know about it at all), it is highly likely that it will be impossible to obtain that identifying documentation.

There are at least two suits currently pending against revenge porn sites based upon the violation of a duty of care established by 18 U.S.C 2257. Once such suit is against and the other against  

These suits are highly significant for another reason. Since 18 U.S.C 2257 was not complied with, there is no way of being certain that the photographs involved persons who are of age. The intent of the law is to prevent of dissemination of child pornography; its violation may very well lead to that result.

Does the 5th Amendment Protect Producers of Sexually Explicit Material From Self-Incrimination?

In in re: Grand Jury Subpoena Duces, 368 F. Supp. 2d 846 (W.D. Tenn. 2005), John Doe 1 & 2 (collectively, “Petitioners”) were served with a subpoena to testify before a Federal Grand Jury. Pursuant to 18 U.S.C. §2257, the subpoena required the Petitioners to bring with them any and all records pertaining to models used by their company Petitioners attempted to quash the subpoena by arguing that it violated their 5th Amendment right to be free from self-incrimination. The United States asserted that the 5th Amendment did not protect the Petitioners because the documents requested were records required to be kept pursuant to §2257.

§2257(a) states:

Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which—

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and

(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

In Shapiro v. United States, the Supreme Court held that the 5th Amendment privilege against self-incrimination does not apply to records that are required to be kept pursuant to a valid regulatory scheme. Shapiro v. United States, 335 U.S. 1, 17-18, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). However, the “required records” exception is construed narrowly in preservation of the 5th Amendment’s constitutional purpose. United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944). The government’s request for information will be granted under the exception if it meets the following three requirements:

(1)   the purpose of the government’s inquiry must be essentially regulatory, rather than criminal;

(2)   the records must contain the type of information that the regulated party would ordinarily keep; and

 (3)   the records must have assumed public aspect which render them at least analogous to public documents.

(citing Grosso v. United States, 390 U.S. 62, 67-68, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968)).

The Supreme Court explained that §2257 targets a specific group of people. Specifically, it targets producers of media depicting sexually explicit conduct that utilizes performers who either are, or appear to be, minors. Additionally, the Court noted that although the record keeping requirement applies to “all producers of media depicting sexually explicit conduct,” it is not necessarily regulatory. The requirement does not foreclose the possibility that it targets a select group inherently suspect of criminal activities. Further, the production and distribution of child pornography is inherently illegal.

The Supreme Court concluded that §2257 is not regulatory in nature. This is because it targets a highly selective group that is inherently suspect of criminal activities, and is a part of a criminal enforcement scheme that seeks eradication of child pornography. Accordingly, the Supreme Court granted Petitioners’ motion to quash the subpoenas because the government did not meet the first prong of the required records exception, to wit: that the purpose of the government’s inquiry must be essentially regulatory, rather than criminal. 

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