Tip for Clean Living: Don’t Use a 14 Year Old’s Self-Portrait in Advertising for Porn–Lara Jade Coton v. TVX

By Eric Goldman

Coton v. Televised Visual X-ography, Inc., 2010 WL 3768039 (M.D. Fla. Sept. 16, 2010). The initial complaint. Lara Jade’s blog post on the court victory. Comprehensive recap from Plagiarism Today, who has been tracking the case all along.

Lara Jade Coton is a precocious photography talent. When she was 14, she took a self-portrait photo dressed up in a top hat and black strapless dress. The photo has no nudity and really isn’t all that salacious. Coton posted the photo to a website called deviantArt, which describes itself as “the largest online social network for artists and art enthusiasts.” Her account page.

The case involves a pornographic film “Body Magic,” redistributed by TVX/Burge. The IMDB page. A contractor, Cohen, copied the photo from deviantArt (or some third party site that had picked up the photo) to use in Body Magic’s marketing collateral, including on the DVD package’s cover and as the image on the disc itself.

Obviously, this was a poorly considered decision. First, this decision appears to reflect the misapprehension that any photos on the Internet are free to reuse. Second, the decision appears to ignore the overlaps between copyright and publicity rights. We’ve seen this issue arise from time to time with Flickr photos and Creative Commons licenses; even if a Flickr photo can be freely republished due to a permissive CC license, the photo can’t be used for advertising purposes if a person is identifiably depicted in the photo without obtaining that person’s publicity consent. As part of our forthcoming casebook on Advertising and Marketing Law, I took a deeper look at publicity rights in advertising, and the case law is horrible for defendants–courts adopt very broad views of what constitutes advertising and identifiability in the advertising even when faces aren’t shown. Every principal case we’ve included in the draft chapter is a defendant loss. Basically, if you’re going to show or reference people in advertising, you need their permission.

After Coton discovered that her photo was being used, Coton contacted Burge and entered an email exchange rife with grammar and spelling errors. In one email, Burge replied:

Not only will you not be compensated for your photo we have turned this problem over to our attorney it seems the company my graphic company got the photo from on the internet is a public domain operation. You knew this when you originally sent us your scheming letter. Nice try toots.

Bonus tip for clean living: don’t use the word “toots” in any responses to cease-and-desist letters.

After promising to remove Coton’s photo, Burge further replied:

I’M SURE BY THE END OF THE MONTH YOUR FACE WILL BE HIS TORY. WE HAVS TOPPED SELLING THE DVD UNTIL COVER IS REPLACED. WE HAVE FURTHER CHECKED OUT YOUR NAME AND ITS NOT LIKE IT’S A HOUSE WHOLE NAME. ACTUALLY, REMOVING YOUR IMAGE WILL HELP IMPROVE THE SELL OF THE DVD ….. SO FAR IT BOMBED.

In retrospect, it is awkward for the film distributor to blame a 14 year old for not selling more copies of a pornographic video.

Coton sued a number of parties; all of them settled except for TVX/Burge, who defaulted on liability but contested damages. At issue were damages for three successful claims: direct copyright infringement, statutory misappropriation of her image, and defamation by implication.

Copyright Infringement. Coton didn’t have a timely registration to qualify for statutory damages or attorney’s fees. Without those, the damages are pretty low. As a professional photographer, the court accepts her asserted licensing fee of ~$3k. With low sales and a low retail price, the distributor’s profits are ~$1k, for a total copyright damages award of a little over $4k.

As we’ve discussed so many times before (see, e.g., this post), timely copyright registration can mean the difference between a big payday and an uneconomic case. If Coton had made the timely registration, she would have likely gotten a larger damages award than $4k, and this court probably would have awarded attorneys fees of many tens of thousands of dollars.

(Note: at the time she posted the photo to deviantArt, she was an amateur photographer in Britain, so it’s not surprising she didn’t make a timely copyright registration. I’m sure she registers her photos early and often now).

The court rejects her claims for contributory copyright infringement for the distributor’s liability for the retailers’ activity, both because the distributor didn’t know it was infringing the photo and because a separate damages award for contributory infringement would be double-counting.

Florida Publicity Rights (a/k/a “misappropriation”). The court denied Coton’s statutory damages request for the misappropriation, treating it as a double-recovery with the copyright license award. To me, this seems like a clear error. Typically, a photo used in advertising will require separate copyright license and publicity rights license fees. In this case, it just so happened that Coton was both the photographer and the photo subject, but that shouldn’t affect the respective license fees. However, Coton requested only $770, so the court’s apparent error isn’t a big financial deal.

The court accepts Coton’s request for $25k compensatory damages for reputational harm but rejects the request for punitive damages because TVX/Burge didn’t know of the misappropriation (Cohen made the error) and remediated it quickly following notice. The court also rejects any separate damages under common law misappropriation (not preempted by Florida statutory law; see the Almeida case) as double-dipping with the statute-based damages.

Defamation by Implication. Coton argued that using her self-portrait on a porn DVD false implied her participation in or support of the porn industry. The court accepts Coton’s request for $100k compensatory damages “for the humiliation and mental anguish caused by the defendants’ defamatory use of her self-portrait” but denies punitive damages for the same reason it denied punitive damages for misappropriation.

Net Effect. Coton won this ruling, but I would characterize it as a small win, not a big one. She had so many factors in her favor: copyright infringement, defaults by defendants, sloppy business practices by the defendants and the overall unsavoriness of the tort (associating a 14 year old with porn). At the case outset, if I knew Coton was going to win on liability, I would have estimated a higher case value than $130k. (I presume she got cash from some of her settlements, so the total payday is likely more). Factoring in attorneys’ fees and the fact she will still have to work hard to get the defendants to pay the judgment, this result isn’t very lucrative for her or her attorney.

From the defendants’ perspective, they probably feel a little relief being on the hook for “only” $130k. Nevertheless, it’s an expensive penalty for their sloppiness. The defendants sold less than 200 disks, so they are paying nearly $700 per disk. Worse, all of this was completely avoidable through industry standard rights clearance procedures. It’s especially surprising to see a mistake like this by a porn company, who should already be accustomed to processing 18 USC 2257 model releases.

This case reinforces some lessons I think we already knew:

* copyright owners who want sizable damages need a timely copyright registrations

* just because a photo is available on the Internet–even on a site that represents itself as a collection of public domain images–does not mean it’s free to use as a copyright matter

* even if the proper copyright license is obtained, a separate publicity rights license/consent may be required for using the photo in advertising. Watch out for being lulled into complacency by favorable Creative Commons licenses, which only address the copyrights and not the publicity rights.

* verify the age of all models used in porn ads if they aren’t the actors in the film. Even if not legally required to use overage models, nothing good can come from showing an under-age model in an advertisement for porn.

* don’t use the phrase “toots” in business correspondence (or, really, ever).

Lara Jade’s blog post adds two tips for photographers: “Remember to be wise about where you upload your images [and] the size you upload them.”

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