Are You An Ad? How To Regain Your Privacy

Damn, I Gave My Pictures/Videos to the Site. Do They Own Me?

One of the issues that arise for webcam performers is that the performers are stuck with a particular site and subject to an over-bearing contract, with seeming limited options and a possible fear that nothing will improve. To make matters worse, the website may be using the model’s image for advertising or marketing the site to prospective viewers/users, claiming that the model is an active part of the site –how many times has a model found photos or videos proudly displayed on a website or the multitudes of websites that are used to lure users into a site, despite the fact that the performer is no longer actively participating in the site. (Cat recently told me about sites that capture performances, without the performer’s express permission, and use those captures to post on other sites to attract prospective viewers.)

It kind of sucks, right? But you are stuck, right? Maybe not.

The Contract (Why Didn’t I Read This Closer?)

Most websites require their performers to sign contracts with very one-sided terms. Not surprising really, since most performers are young and lack an equal bargaining position –if you want to perform (and make money) you agree to their terms. These contracts require the model to assign all of her rights to any photographs or videos (or even, as in Cat’s case, captures of performances) and include provisions such as the following:

(Production Company) does exercise control over the images, video, and content provided to the Network by the MODEL. Content provided to (Production Company) can be subject to use for promotional materials and advertisements. Content includes all images and videos taken by and/or filmed by (Production Company) representatives and photographers.

 

. . .

 

MODEL hereby covenants . . .that any and all original and useful work, product, work of authorship, pictures and videos of MODEL . . . generated by MODEL during the term of this AGREEMENT . . . shall be considered and deemed “works made for hire” . . . MODEL specifically disclaims and waives any claim, right, title and interest in any such Work-Product and expressly agrees to sign any documents, enter into any agreements and grant any assignments or powers-of-attorney, during or after the term of this AGREEMENT, without need of any further consideration.

For those of you who skimmed the contract that you signed, you have just given any and all copyrights to nearly everything that you create/do while a performer on the site. They own your images. In some ways, they own you –or so they would have you believe. Fear not, there just may be a way to recapture your photos, images, or videos –you.

You Have A Right of Celebrity.

Copyright rights and assignments (in the U.S.) are governed by Federal Copyright laws. Copyright laws generally favor the websites and favor the right to assign those rights; after all, the assignment of these rights theoretically serves as a benefit to the performers, increasing the possibility of employment and (in theory) increasing the eventual monies received by the performers. However, when a contract fails to reserve any right of the performer in her images/performances, inequitable results may occur. To avoid the possible inequitable results, a performer should look to those rights that are (arguably) not subject to copyright laws –a model’s right to privacy. In two major jurisdictions, there have developed doctrines/legal arguments that may be useful for the oppressed performer.

CALIFORNIA:

California has been progressive in it’s so called “right of publicity.” California courts recognize that “a man has a right in the publicity value of his photograph.” The “right of publicity means in essence that the reaction of the public to name and likeness, which may be fortuitous or which may be managed or planned, endows the name and likeness of the person involved with commercially exploitable opportunities.”

The right of publicity protects “‘the very identity or persona of the (performer) as a human being,’ ” not the particular photograph of the performer. The important part of the cases out of California is the recognition that this protection “parallels” federal copyright law, and is not subsumed by it. California has also recognized that the celebrity rights are assignable and someone or something else may have the right to enforce the unauthorized use of celebrity (this is a complexity which deserves a separate discussion).

Under California law, the model’s protections are found in the right to privacy (Cal. Civ.Code § 3344), and common law misappropriation of likeness. Like New York, use of a person’s likeness for commercial advantage is prohibited. In addition to the common law cause of action, California has provided a statutory remedy for commercial misappropriation under California Civil Code § 3344. Under section 3344, a performer must prove use of likeness, without permission, and resulting damages, –and this is important, the performer must show a knowing use by the website, as well as a direct connection between the alleged use and the commercial purpose.

NEW YORK:

In New York there have been a series of recent cases that have found that copyright assignment does not preclude violations of New York Civil Rights Law §§ 50 and 51, both of which pertain to use of a performer’s name, portrait, picture or voice in the State of New York for purposes of advertising or trade, without the plaintiff’s written permission. The performer can seek injunctive relief and damages for violations –including exemplary or punitive damages if the requisite degree of harm can be shown. If you are the curious sort of person, the case to which I am referring is Leviston v. Jackson, 43 Misc. 3d 229, 234-36, 980 N.Y.S.2d 716, 719-21 (Sup. Ct. 2013) and involved .50 cent’s use of an adult video of a rival on his website in 2009.

So What Does It Mean?

Ok, you have made it this far, but what now? What does the Right of Publicity mean to you?

Your celebrity rights may be the key to taking back your image, allowing you the freedom to leave to go onto another site, start your own site, or even just to negotiate a larger percentage of the profits realized from your hard work as a performer.

The California and New York cases are important because there are plenty of courts outside of both states that have held that a copyright owner has the right to use the material however he/she/it sees fit. Those courts, including courts that find that federal copyright laws subsume all rights, give the performer little or no rights for the “works for hire” (photos/videos or the like).

However, courts in New York, California (and what is called the Ninth Circuit) have created exceptions to the dogmatic copyright rules. Not only do these courts’ decisions mark a likely change in privacy rights, but because of the nature of the internet, it is likely that very strong arguments could be made that websites are subject to jurisdiction in California and New York for the purpose of enforcing publicity rights due acceptance of money from residents of each state.

The rights of privacy/celebrity are important because they may not be assigned in the performer’s contract. Your privacy/celebrity rights are yours to control, and your images should not be used to advertise a site that you have left. Your celebrity rights, even if you have only a handful of Twitter followers, cannot be used to the benefit of someone who forced you to sign a one-sided contract to act as a webcam performer. Your image is… well, yours. Take it back.

LEGALESE: Again, the opinions set forth above are NOT specific legal advice for your situation and you should consult with an attorney (even if it is just to email me) before relying upon the discussion herein. Every factual pattern and most contracts are different (just like the performers themselves) and deserve specific attention and analysis.

UPCOMING: With Cat’s permission, the next topic will address a performer’s right to work after leaving a website and the dreaded (at least on paper) Covenant Not to Compete.