The Authors' Take - Delivering (Up) a Copyright-Based Remedy for Revenge Porn

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] 

The Authors' Take - Putting a Face to the Game: The Intellectual Property Implications of Using Celebrity Likenesses in Videogames

Putting a Face to the Game: 
The Intellectual Property Implications of Using
Celebrity Likenesses in Videogames

by Yin Harn Lee

Lecturer in Law, University of Sheffield

Technological advances have allowed videogames to depict individual likenesses with an increasing degree of fidelity. Because of this, it is now not uncommon to see videogame characters bearing the likenesses of well-known celebrities. Often, this will be the outcome of a licensing arrangement between the videogame developer and the celebrity concerned. Disputes may arise, however, where a videogame developer chooses to recreate the likeness of a celebrity in its videogame without first securing the latter’s consent.

In various US states, the outcome of these disputes would be determined under the law relating to the ‘right of publicity’, which gives individuals the right to control the commercial exploitation of their name, image, voice, and other aspects of their identity; in a number of continental European jurisdictions, similar disputes would be decided under the law relating to the individual’s ‘right of personality’. The UK, however, has no equivalent legal framework. Disputes relating to the unauthorised use of a celebrity’s likeness in a videogame will therefore have to be determined under a range of different intellectual property regimes, in particular copyright law, the law of passing off, and trade mark law.

This article [which will be published as Advance Access here in a few weeks' time, and will be included in one of the next issues of JIPLP] will show that, while the unauthorised recreation of a celebrity likeness in a videogame is unlikely to amount to copyright infringement, the position may well be very different under the law of passing off and trade mark law. This is due to the expansion of the ambit of each of these regimes over the course of the last few decades. In recent cases, the courts have become increasingly willing to recognise that the likeness of a celebrity is capable of functioning as an indicator of origin and, as a corollary, to accept the possibility that the unauthorised use of such a likeness on a product may mislead or confuse the public into believing that the product was authorised or endorsed by the celebrity concerned. While the unauthorised use of a celebrity likeness in a videogame might appear to be far removed from the paradigmatic case of passing off or trade mark infringement, therefore, the applicability of these two regimes to such a scenario can no longer be dismissed out of hand.


[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).]