Celebs, Selfies, and Copyright Law - Fordham Intellectual Property, Media & Entertainment Law Journal
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Celebs, Selfies, and Copyright Law

Celebs, Selfies, and Copyright Law

Hacked Celebs Sue ISPs Over Scandalous Selfies – Lawyers Say Sites Do Not Enjoy DMCA Liability Protection

Those selfies you took during your last night out with friends may be copyrighted material.  At least this is a legal argument that celebrities such as Jennifer Lawrence, Scarlett Johansson, Cara Delevigne and many others (including even C-lister Nick Hogan, son of 1980’s World Wrestling Federation icon Hulk Hogan) could be relying on after their intimate photos were recently leaked to the Internet.   Hackers surreptitiously gained access to the celebrities’ cloud storage devices and released the pictures of the stars en masse over the past month.  Now the stars are clothing themselves in protections afforded by copyright and criminal law in attempt to fight back against these selfie – swindlers and the Internet service providers that facilitated the leak.

Of course the hacker responsible for this type of attack can be held criminally liable depending on exactly how they obtained the photographs.  Christopher Chaney, one of the last of such celebrity photo hackers was convicted of nine felonies and sentenced to 10 years in prison for his role in a similar attack in 2010.  He pled guilty to a variety of felonies including unauthorized access to a protected computer, unauthorized damage to a protected computer, and wiretapping, each with maximum sentences of five years or more.  To most people, holding the hackers criminally responsible is a given, but can any liability attach to the companies that make the photos available to millions of people worldwide?

Service providers like Google generally enjoy a wide degree of liability protection from copyrighted material posted on their sites by users under the Digital Millennium Copyright Act as long as they did not have actual knowledge of the material and they responded “expeditiously” when notified of its presence.  See DMCA 512 (c)(1).  Owners of the copyrighted material can request the provider remove the infringing material from the website by filing a so-called “512 request”.  See DMCA 512 (3).   While service providers apparently comply with this process often, it seems in the latest case, several of the actresses are unhappy with Google and YouTube’s lackadaisical response to the incident.

Many of the actresses involved threatened to sue the companies over the photo leakage claiming both that they had actual knowledge that copyright infringing material was posted on their websites, and they did not remove the images quickly enough once informed of its presence.  The Los Angles entertainment litigation firm Lavely & Singer sent high – ranking corporate officials at Google and YouTube, including Larry Page and Eric Schmidt, correspondence indicating the actresses’ commitment to pursue their copyright infringement claims in court, while threatening the giant tech firms with a suit claiming $100,000,000 in damages.  The correspondence also claimed that Google and YouTube took down posts, if at all, too slowly, while the statute requires “expeditious” action to prevent infringement.

Sadly for the celebs though, it seems likely that civil and criminal remedies cannot make up for what these celebrity victims may desire most, which is an “unsharing” of their intimate photographs with millions of strangers worldwide.  A feat like this is of course impossible, and, for now at least, the best way to prevent such an attack may be to refrain from digitizing such material in the first place.

Blair Springer

Blair Springer is a second-year student at Fordham University School of Law. Among his interests are the intersection of current events, technology, & the law.