LEGAL BRIEFS
Celebrity sites are all over the Internet. Not only are smaller, independent webmasters using celebrity images on their sites, or linking to others that have this content, mega-porn companies are also heavily involved in this controversial content issue.LEGAL BRIEFS
Celebrity sites are all over the Internet. Not only are smaller, independent webmasters using celebrity images on their sites, or linking to others that have this content, mega-porn companies are also heavily involved in this controversial content issue. As an editorial aside, it’s worth noting that certain individuals involved with celebrity sites were invited to sit on the panel for this seminar to discuss the legality of celebrity content, but declined the invitation, such as Steve Workman with CEN.
YNOT Network President Greg Geelan, along with attorney Richard Chapo (www.adultinternetlaw.com) and seminar moderator Fred Lane (also an attorney) spoke at the seminar, “Celebrity Nudes.” Geelan reported to those who braved the early 9:30 a.m. starting time that the idea for this seminar developed out of periodic discussions on the celebrity nudes controversy on the YNOTmasters.com General Chat Board. The seminar demonstrated, however, that when it comes to live public debate, few are willing to go on record and defend the legality of celebrity sites.
Geelan mentioned that he has often challenged the celebrity site community to prove the legality of existing celebrity sites, as YNOT is often asked by companies promoting celebrity sites and affiliate programs to sell them advertising space on YNOTmasters.com . Once such proof is produced, Geelan noted, he would be happy to sell advertising to these companies. None of these potential advertisers to date, however, have made any effort to justify their celebrity sites on a legal basis.
The vast majority, if not all, of existing porn sites showing nude celebrity images are illegal, said Geelan, in that they violate intellectual property and privacy rights, as the site owners hold no ownership interest in the nude images used. Most also defraud surfers in claiming on banner advertisements and spam emails to have pictures of certain celebrities, but instead do not have any pictures of those celebrities or cut and paste a celebrity’s head shot onto the body of a nude model.
Geelan conceded that it may be possible to operate a legitimate celebrity site, should certain requirements be met. For example, sites that contain photographs of nude celebrities but provide information via an educational component can be run within the law, even though the site owner may not own the particular nude images in question. If the site does not have an educational or informative component as typical of a news source, then a celebrity site can only be operated legally if the site operator owns the images published on the site, or has permission from the copyright owner to use the images. Further, it would be appropriate for a webmaster to take public photos of celebrities whose breasts happen to pop out of their dresses and publish those pictures on a web site, or pay a photographer for such images, but the cost involved would be prohibitive.
Proponents of celebrity sites commonly proclaim that the images they publish are “public domain” and are therefore appropriate. Geelan claimed that the “public domain” defense is essentially urban legend. No matter how many times an image is published and no matter by how many people, the image does not become public domain unless the copyright holder expressly designates the image as such. Further, copyright protection applies for the life of the author of the original work, whether a photo or a writing, plus an additional 75 years. As Geelan pointed out sarcastically, the only celebrity nudes that the “public domain” defense would apply to would be pictures taken in the 19th century.
Fraud is something that webmasters who display celebrity nudes should be concerned with, especially because of the Bush administration. A webmaster can be held civilly and criminally liable for superimposing images. It’s considered fraud because it misleads the consumer. Even if you have a disclaimer on your site claiming that the image is superimposed, you could still get in trouble for defaming the celebrity’s character. According to Geelan, the ever-increasing rise in law enforcement will eventually get webmasters in big trouble for celebrity content.
Even if you don’t have a celebrity site, you can get in trouble for linking to one, said Geelan. A recent case in Utah held a web site owner liable for the inappropriate conduct of a site it linked to.
Attorney Richard Chapo introduced the terms trademark and dilution to some of the webmasters in attendance. Defaming a celebrity’s character can be proven by trademark dilution laws in a court of law, which can result in a restraining order, frozen bank accounts, the termination of your sites, and a permanent injunction, or worse (jail). Chapo used the example of the infamous Pamela Anderson/Tommy Lee tapes in the case against IEG.
Another astute comment made by Chapo during the panel was: Factoring in potential legal expenses ($60,000 – $250,000) in defending a lawsuit brought by a celebrity, is the revenue you are generating from a celebrity site worth risking a hefty lawsuit? It may seem like it is now, argued Chapo, but if you get a call from the Attorney General’s office, you’ll wish you hadn’t dabbled in celebrity nude sites.
Back to the Pamela/Tommy example: Chapo said that Penthouse won its case against Pamela because they used their images in a newsworthy, legitimate fashion. The case was a close call, said Chapo, and if it’s a close call with Pamela, he said, what about celebrities who have never appeared nude? (That is not likely to stand up in court.)
Another misconception that Geelan noted was that webmasters assume if there’s no copyright notice on an image, it’s free reign to post on your site. In reality, the lack of a copyright notice does not entitle one to publish those images. Further, U.S. Code §2257 provides that if you have sexually explicit content on your site, you must have custodian of records information so that it can be proven that the models are not underage. Are existing celebrity sites §2257 compliant, wondered Greg? Probably not, he said, as a lot of these sites steal the images from others. Not having the proper §2257 documentation is a criminal offense said Geelan.
If you have an overseas host, that too, does not protect you. It doesn’t matter where you are, said Geelan, if you are committing copyright infringement.
Moderator Fred Lane also offered some advice on celebrity nudes saying that there are now organizations, such as the one founded by the mother of Alyssa Milano – CyberTrackers – that go after people operating adult sites with celebrity content. Such sites have been shut down, said Lane, and celebrities have been awarded damages as a result.
Copyright and trademark issues are areas that are working against webmasters. According to Geelan and Chapo, most celebrity sites are illegal. It will be interesting to see what the status of celebrity sites will be at next year’s Internext expo in Las Vegas.
