This article was originally published in the November 2019 issue of XBiz World.
Earlier this year, in March, the U.S. Supreme Court issued a decision in the case of Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. The ruling will affect how copyright infringement is handled generally, including in porn and camming.
Copyright protects works of a creative nature, such as pornographic movies, clips, and images, as well as erotic audio stories, written content, and more. Typically, copyright vests in the person or persons who authored the work. In some cases, it will vest in a company or third party by virtue of creation by an employee, or there being a contract having particular relevant provisions.
A copyright gives its owner several exclusive rights, some of which include the right to reproduce the work, the right to create derivative works (i.e. modified works), the right to publicly display the work, and the right to publicly perform the work.
Copyright infringement occurs when someone exercises one of the rights of a copyright holder without the copyright holder’s consent. For instance, it’s likely an infringement when a company creates a great new porn movie, and a third party uploads a copy of that movie to a tube site, or even to Facebook, without a license (i.e. permission). There, the third party has illegally made a copy of the work.
If you’re “in the biz,” you know that copyright infringement is abounding in the world of porn. You also probably know that the Digital Millennium Copyright Act (DMCA) can be used to facilitate a website service provider’s removal of content illegally uploaded by a third party. The DMCA, however, does not cover when the website provider, itself, uploads the content. For example, the DMCA does not apply when a website operator uploads to its website content of third parties for its own gain, whether it be that they sell subscriptions, VOD, or just let it be viewed for free. These kinds of instances, or in cases where content was not removed in response to a proper DMCA notice, must typically be dealt with via a lawsuit.
Currently, it’s taking an average of seven months for the U.S. Copyright Office to process copyright applications. Accordingly, there is a waiting period between the time of the application and the time of registration. The question in the Fourth Estate case was whether the law requires a copyright owner to wait for the registration to issue before bringing suit, or can bring suit in the interim after an application has been filed.
Although one does not need a registration to be the owner of a copyright (as “common law” copyright vests at the time of creation of the work), a registration provides many important benefits, so it is ideal to have registrations for your content. Some of the several benefits include the right to sue in federal court (instead of state court) and increased damage awards in what is called, statutory damages.
In Fourth Estate, the Court determined that the law requires an issued registration as a prerequisite to bringing suit – A pending application is not enough. The Court also held that once the registration issues, the copyright owner can recover damages for infringement that occurred both after and before the registration. This means that one must wait until a registration issues to sue, but will then be able to recoup damages from during the waiting period (as well as after).
The effect of the decision is that it is advisable for companies, performers, or whoever else is entitled to copyright in content, to file with the Copyright Office as soon as possible. You’ll need to wait until the registration issues, which could take the average of seven months or more, to bring suit in the case of piracy. Though technically, you’ll be able to collect damages from the time of application, the success of actually collecting such damages, in many cases where the defendant is insolvent or offshore, might be tenuous. So, file early…
Notwithstanding, the Court did point out some applicable exceptions written into the law. For example, a copyright owner who is preparing to distribute a work of a type vulnerable to predistribution infringement may apply to the Copyright Office for a pre-registration. This exception could apply to porn movies that are high profile before release.
Another example exception discussed by the Court is that a copyright owner may sue for infringement of a live broadcast before copyright has been made. This exception could apply to cam sites where a viewer surreptitiously records the show and then distributes it.
Accordingly, although there are some exceptions that the adult industry should be aware of, in general, the rule of thumb should be – file as soon as possible once the work is completed. Like they say about condoms, “it’s better to be safe than sorry.” Even if you may fall into one of the exceptions, there can only benefits to filing copyright applications sooner rather than later.