Using Copyright Law to Fight Revenge Porn?

Periodically we share outstanding “IP News” essays written by undergraduate students for the Intellectual Property course (BUS 502). Below you will find Ao Chen’s. 


Using Copyright Law to Fight Revenge Porn?

The advent of the internet and social media has facilitated the perpetuation of a new form of sexual violence against women – “revenge porn”. The phenomenon refers to sexually explicit images or videos that are publicly distributed online without the consent of the person portrayed.[1] Recently, lawyers at US-based law firm K&L Gates have launched a pro bono initiative to fight “revenge porn” by using copyright laws to demand that prejudicial materials of victims be taken down.[2]

Nonetheless, it is worthy to point out that jurisdictions such as Canada have already adopted criminal legislation in order to tackle revenge porn including the Protecting Canadians from Online Crime Act[3].  Furthermore, victims have been successful in civil claims and in obtaining damages and injunctive relief against perpetrators for public disclosure of private facts and intentional infliction of emotional distress.[4] We can therefore ask ourselves whether copyright law is an useful or even appropriate channel through which victims of revenge porn can or should seek redress. Nonetheless, copyright law may provide victims with an effective measure to deal with the very nature of revenge porn.

As Jacquilynne Schlesier points out, neither a criminal conviction nor a successful tort suit necessarily ensures the victims’ primary goal – the “timely removal” of their images.[5] While these injunctions may forbid initial wrongdoers from posting or keeping offending materials, the real issue lies in successive re-postings of such materials on the Internet. Once an intimate image is published on the web, the author quickly loses control of it, “its digital footprint is embedded in binary cement”.[6] Furthermore, while tort liability of those who publish revenge porn materials can be relatively easily established, the liability of internet forums and websites that unknowingly or wilfully host the content is not so. In fact, in the United States, websites which host revenge porn materials are protected against civil liability by Section 230 of the Communications Decency Act which limits the liability of Internet Service Providers for content generated by third parties.[7]

Copyright law may nonetheless provide a tool for victims to expediently remove their sexually explicit images from the web. In the United States, pursuant to Section 512 of the Digital Millennium Copyright Act (DMCA), an Internet service provider shall not be liable for infringement of copyright, as long as it responds “expeditiously to remove, or disable access to” the material that is claimed to be infringing upon notification of a claimed infringement.[8] Although the DMCA would seemingly appear to provide a “safe harbor” protection for websites which host infringing materials, Section 512 actually provides a quick and effective tool for the removal of such materials – commonly referred to as the DMCA takedown notice.[9]  In fact, you may have noticed its mechanism in action at the bottom of Google search pages: “In response to multiple complaints that we received under the US Digital Millennium Copyright Act, we have removed 6 results from this page”. They are an empowering tool for women or any victim of such a cyberoffense. In fact, takedown notices do not require that the victims register their copyright nor require a lawyer to file such a notice – the content of the notice must simply follow the requirements outlined at Section 17 U.S.C. § 512(c)(3)(A).[10]

However, to assert a copyright on certain works, a person must demonstrate the following cumulative criteria: i) originality of the copyrighted works, ii) ownership thereof and ii) that the materials fall under a category of protected work.[11] With regards to the first criteria, US and Canadian courts alike have long held that the threshold of originality is relatively low. As long as the work is the “product of the exercise of skill and judgment that is more than trivial”, it is sufficiently original.[12] Hence, creativity is not required to make a work “original”.[13] In photographs and “selfies”, however deemed puerile, skill and judgment can be observed through the angle of the shot or the lighting.[14] Criterion two is likewise met since, according to the Cyber Civil Rights Initiative, most victims of revenge porn have taken the explicit pictures or videos themselves.[15] As authors of the intimate materials, they therefore most likely own the copyright in them.  Criterion three is likewise easily fulfilled.  For instance, Section 2 of the Canadian Copyright Act expressly provide that copyright protection extends to both photographs and cinematographic works.[16] The mere fact that revenge porn features sexually explicit materials does not bar them from such protection.[17] In certain instances, registering and enforcing copyrights have effectively helped victims to remove their intimate images although no successful copyright infringement suit has yet to be reported.[18]

Hence, as Amanda Levendowski points out, “working backward” from the remedy victims most want – the swift takedown of their images, copyright law may serve as an efficient tool to achieve such a goal.[19] Nonetheless, using copyright law in such a peculiar manner does present significant issues. First, copyright laws do not protect victims of revenge porn against pictures of themselves taken by others unknowingly or without the victim’s consent – they protect only images authored by the victim.  Second, victims are confronted with the very nature of the Internet – its fluidity and dynamism. While issuing a takedown notice may result in the offending content being removed from one source, it will simply appear on another. Furthermore, although copyright law may provide a somewhat effective tool for victims, one might wonder if it is the appropriate avenue through which victims should seek justice. After all, it may seem that fighting sexual violence hardly fits with the objectives pursued by intellectual property laws such as encouraging new technologies, artistic expression and inventions, while promoting economic growth. While jurisdictions such as Canada have amended their criminal laws to address revenge porn, not every jurisdiction criminally sanctions the phenomenon. Nonetheless, the use of copyright law to fight revenge porn subscribes to a growing trend towards (mis)using intellectual property rights.[20] Before greater reforms are adopted in the field of criminal and tort law, the end result of protecting victims will continue to justify the means.


[1] Amanda Levendowski, “Using Copyright to Combat Revenge Porn” (2014) 3: 4222 NYU Journal of Intellectual Property & Entertainment Law 422 at 425 [Levendowski].

[2]Law Firm Founds Project to Fight ‘Revenge Porn’, The New York Times (29 January 2015), online: < http://www.nytimes.com>.

[3] Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, 2nd Sess, 41th Parl, 2014 (assented to 9 December 2014), SC 2014, c 31.

[4] Doe 464533 v N.D., 2016 ONSC 541.

[5] Jacquilynne Schlesier, “Breaking-up Bad: Is Copyright the Best Tool to Fight Revenge Porn?” (June 2, 2015), Student IP ICentre (blog), online: <http://www.iposgoode.ca/2015/06/breaking-up-bad-is-copyright-the-best-tool-to-fight-revenge-porn/>.

[6] I.R. v C.N.T., 2015 NSPC 43 at par 11.

[7] Communications Decency Act, 47 USC § 230(c) (1998).

[8] Digital Millennium Copyright Act, 17 USC § 512 (1998).

[9] Ibid.

[10] Ibid at s 17.

[11] CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13.

[12] Ibid at par 23.

[13] Ibid at par 24.

[14] Ateliers Tango Argentin Inc. v Festival d’Espagne et d’Amérique Latine Inc., (1997), 84 C. P. R. (3d) 56.

[15] Levendowski, supra note 1 at 440.

[16] Copyright Act, RSC 1985, c C-42 s 2.

[17] Mitchell Bros. Film Grp. v Cinema Adult Theater, 604 F.2d 852, 860 (5th Cir. 1979), cert. denied, 445 U.S. 917 (1980).

[18] Erica Fink, “To fight revenge porn, I had to copyright my breasts”, CNN (April 26, 2015) online: <http://money.cnn.com/>.

[19] Levendowski, supra note 1 at 446.

[20] See Euro-Excellence Inc. v. Kraft Canada Inc, 2007 SCC 37.

This content has been updated on February 27, 2017 at 11:06.

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