Delivering (Up) a Copyright-Based
Remedy for Revenge Porn
by Yin Harn Lee
Lecturer in Law, University of
Sheffield
Despite legal
reforms that have recently been implemented to address the problem of what is
colloquially known as ‘revenge porn’, victims continue to encounter
difficulties in seeking the removal of their private sexual images from
third-party websites. While victims who are able to assert authorship and hence
ownership of the copyright in these images can rely on the notice and takedown
provisions found in the copyright laws of many jurisdictions to compel their
removal, victims who are unable to assert such ownership are left without legal
recourse. This would be the case where the images in question had been recorded
by the perpetrator. However, existing proposals for victims to be recognized as
the joint authors of their private sexual images or to be granted a new
exclusive right to prevent their distribution, while well-intentioned, would
disproportionately disrupt fundamental copyright principles.
Drawing
inspiration from the terms of the settlement in the recent case of Chambers
v DCR, this article puts forward the following solution: where a claimant
has succeeded in obtaining injunctive relief against a defendant on the basis
of the non-consensual distribution of the claimant’s private sexual images, the
court may in an appropriate case make a further order directing the defendant
to assign any copyright they may have in the images to the claimant. This would
function in a manner akin to the well-established remedy of delivery up. While
the order of delivery up has traditionally been directed at physical rather
than intangible property, the courts have in more recent years been willing to
grant it in ‘cybersquatting’ cases so as to compel the transfer of unlawfully
registered domain names to brand owners. The extension of the remedy in this
way is therefore not without precedent. While it is something of a makeshift
solution, the proposal fills a vital gap in the array of remedies available to
victims of revenge porn, pending the development of more comprehensive
international standards for privacy rights.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). An extended version of the present contribution will be included in one of the forthcoming issues of the Journal]
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