No, Copyright Clearance Is Not Enough . . .
The Right of Publicity / Right of Personality for Adult Content Producers and Webmasters
By J. D. Obenberger, Attorney at Law
© MMII J. D. Obenberger, All Rights Reserved
Fundamental Background and Introduction to the Law of Publicity
As I've noted in another article on this site, it's best to think of copyright just like a proper understanding of any property right - that is a right to exclude others from using and enjoying it more than the right to use it in one's unfettered discretion - while you may own an acre of land, that bare ownership just entitles you essentially to eject trespassers and recover from trespass; it does not mean that you can do whatever you want on your property - and you may first discover that when you dig a well, erect a structure and start living in it, or dam a stream without the appropriate zoning clearances, building permits, special permits, and occupancy permits - and see what a world of trouble you've created for yourself. Particular uses of things that you own often require further steps in order to secure your right to do what you want, even when you own it.
Though you may own the copyright to an image or video (and thereby have the right to register your ownership and then to proceed against infringers) your own legal right to commercially publish the material will depend on further issues. One of those is the rights of the persons and things depicted. Without covering those rights completely, your publication of content - even whose copyright you own - may yet subject you to liability from performers and models. Most photographers have a sense of that, and understand that they need a model release. But not so many of the know what kind of model release they need. They are not all the same. Some are for stills, some cover video (and it's not just a word change, there are things like ad-libs and performance issues to consider that may vest the performer with his or her own copyright in what they each may have created) and some are perfectly fine for softcore solo art, but fall apart in the whacky world of hardcore. They are not all the same at all. In fact, some are bad in every application. More about that later.
(It should be added that other rights at issue in determining whether you can exploit your content commercially include trademark and copyright; it is often easier to make sure that no trademarks are visible or mentioned in your material than to contend with those issues; similarly, background music, television, movies, radio, posters and works of art, and similar matter inject copyright liability issues that may subject the photographer to liability for commercial exploitation. then there is Section 2257 and obscenity law, and all that. No. Owning the copyright is never enough in the adult sphere.)
This right is mainly a function of state law, and the states differ in the degree of protection which they afford to performers and models. In some places, the right is viewed as a matter of purely personal right and exists only during the lifetime of the performer and in other jurisdictions, the right is seen as a kind of property that can be transferred at death, in the most extreme case, that of Indiana, the survivors can enjoy the benefits of the right for as long as 100 years. After California denied the heirs of actor Bella Lugosi any right to recover for the commercial exploitation of his appearance, the California legislature stepped in and provided that the right of publicity would extend its protection 70 years after the death of the performer. The right goes by different names at least in part because it developed from judicial decisions in different state courts using different theories. In more recent decades, state legislatures have codified the right or at least part of it; in some jurisdictions, the body of case law survives and coexists with the statute, each adding something to the nature of the right, and in other jurisdictions, the statute is determined to have wholly occupied the state of the law, and the former case law is no longer controlling. The trend of the statutes is to require a written release for commercial exploitation. It should be added that bona fide news coverage and the public's right to be genuinely informed in good faith tends to trump whatever private rights pass in the name of the Right of Publicity, and a fireman standing in front of a blazing fire is quite unlikely to find redress from the courts when daily newspapers include his face in a photograph of the fire. There has also been litigation which tends to establish that a remote figure, clearly not the focus of an image but appearing as a background figure in the image has few or no rights to complain about the exploitation of his image. The Supreme Court of the United States has dealt only once with this right, in the case of a human cannonball whose entire act, lasting only seconds, was captured on video and broadcast on local television news without the consent of the performer; the Supreme Court determined that such a publication of the performer's entire act was not a "fair use" of the performance so as to protect the television station from liability under the First Amendment. One of the commonest questions asked by audiences during legal seminars over the years has been about public nudity in such places as beaches and on Bourbon Street in New Orleans during Mardi Gras. The answer tends to focus on the use of the images. A single image used to illustrate the phenomenon as part of an apparently genuine news article written in good faith to inform or entertain the public, especially if personally-identifying attributes such as the face are occluded, is far less likely to create liability for the publisher than a series of images plainly offered for sexual excitement, one after the other, on a subscriber-based adult website. (The use of images captured in public and used without permission presents other legal issues as well, including the possibility of publishing child pornography and violation of the requirements of Section 2257.) On the other hand, celebrity candids as in paparazzi images and outtake material from the movies of professional actresses are likely to be genuinely newsworthy and their publication is likely to enjoy constitutional protection, as Anne Margaret discovered when she sued Larry Flynnt Productions for its use of nude outtake images taken from a film, which had been published in Hustler's Celebrity Skin. "Stolen" celebrity sex videos fall into an entirely different category of analysis beyond the more humble scope of this article.
One respected IP website parses the state of the law as follows, as of March 8, 2012: Nineteen states have enacted statutes protecting the Right of Publicity and twenty-eight states recognize it to one extent or another through judicial decisions. One additional state, Arizona, has enacted a statute protecting the right with respect to both living and dead military service members. The statutes enacted by the various states can be found on that website:
State Statutes Establishing a Right to Publicity
California (2008 amendment to 3344.1)
Complications for Adult Webmasters
Not all model releases are created equal. Some are far better than others. In order to judge the effectiveness of any form, you must start by understanding that the document will be strictly construed against the producer tendering it, and strictly in favor of the performer. Nothing will be implied beyond the text. Nothing.
If the release mentions only rights in the performer's appearance, it will not extend to provide the videographer any rights with respect to her performance, to her copyright interest in her ad-libs and choreography and the other copyrightable aspects of her performance; an amazing number of releases reviewed in this office say not a word about copyright at all, and each of them, to the extend that they alone were used to secure rights, invites a copyright claim by the model. Unless the model effectively assigns the rights (or they are handled by a work for hire agreement) she possesses those copyright interests just as soon as you reduce the video to a tangible medium.
And if she releases her rights to you and to your users (your assignees and licensees) she retains them with respect to all other persons; thus, when you pursue an infringer, she has a right to participate and sue along with you for infingement of her Right of Publicity and perhaps her copyright as well. This car really jam up your ability to settle the case and recover.
The scope of this article does not extend to the problems of defective model releases, but the reader should understand that the general quality of releases in use by Internet videographers, as we see them from time to time here, is not very good. A good release will take into account each of the matters set forth in the three precesding paragraphs, but will also deal with many issues unique to sexually explicit photography, such as the arguable privacy right that the model maintains concerning her Section 2257 records and information; its disclosure to licensees and other users and to a purchaser when you decide to sell content or to undertake a bulk transfer when you sell the business should always be addressed in a release; it will include provisions to cover the normal hyperbole in advertising that may make uncharitable comments on the moral character of the performer. Indeed, there are a host of potential liability situations which can be avoided by the use of good releases, problems that seem to be neglected often today. As the economy continues to suffer, it is only a matter of time before an attorney begins to represent performers and go after the producer or even authorized and licensed users for improper use of content in ways that were not authorized by the performer in the release. If you've sold or licensed the content, unless you've disclaimed the UCC Warranty of Merchantability, you have warrantied your good title to the work and its complete suitability for the normally intended purposes; not only will the performer sue, but your licensees or assignees may sue you, too, for breach of warranty. Please consider that you can only expect the value of a release in what you paid for it, or less. And if the source of the release denies that he is practicing law or that you have an attorney-client relationship with him, and if he provides a ton of disclaimers of any and all warranties, including the warranty of merchantability, and excluding consequential damages, you can get a good sense of who bears all the risk, substantial risk, in the use of those releases.
And then there are the crazy nutzo releases that get posted in public amounting to abominations. Even a thief deserves better than the consequences that may ensue from their use. Emphasis on the last syllable of that last verb. Sometimes, given the missing words, horrendous syntax, and statements that don't make any legal sense, I begin to think that maybe they've been intentionally planted, like a virus, to hurt the people who take them and use them, people who think that they've gotten something for nothing. If those documents ever saw the creative input of any lawyer, I sometimes alternatively think that it was generations ago, and that one generation of self-taught laymen after another must have thought they were improving on it with their additons that destroyed the basic function and any legal functionality. The most incredible aspect of this cultural artifact is the incredible pride that some independent content producers have with their "modified" forms after they have ruined a perfectly good contractual release. (And don't get me started on the Section 2257 Notices that one pirate steals from another. Most of them haven't been any good since the Protect Act was passed almost ten years ago. They are so bad that they call the FBI to inspect as conspicuously as the Police Chief in Gotham City shining that Bat Searchlight on the Clouds. I keep a folder full of the worst 2257 Notices that I've ever seen. I will eventually publish them and distrbute them to First Amendment Lawyers at some meeting or seminar. They will be falling off their chairs.)
A final word: Any webmaster who buys or otherwise acquires the right to use content created by a contractor videographer who uses his own forms - of unknown provinence - has his legal scrotum in the hands of that photographer. It can be cut off, and precious assets that took a life to build up, can be lost because the documents don't hold water. The independent videographer will tell you that he's never been sued, which, of course, proves nothing. He doesn't look like a very deep-pocket target to any plaintiff's lawyer. Don't believe or trust him when it's your house and car on the line. There are two solutions to this problem, one expensive and cumbersome and one easy and not so expensive. The worse method is to conduct a legal review each of the forms one as a time as they come in from each of the content producers whom you use. The better solution is to mandate the use of your own forms and protocols, uniformly created by your own trusted lawyer, and imposed on your videographers - if they intend to get paid for their content. Your forms will vest all legal rights in your company, leaving the independent with his check and nothing more. Just as you want it, and with added peace of mind.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately, but offer no physical resistance. All matters presented here are subject to the fine print set out elsewhere on this website.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org