Actress complains of link to sex tape -- Chilling Effects Clearinghouse

We are litigation counsel for [private]: We are writing with respect to our client's claims against you arising from your violations of U.S. Federal Copyright Law and violations of Ms. [private]'s rights of privacy and publicity.

The copyrighted work includes a private and highly confidential videotape, as well as the still photos and images therefrom, depicting our client and her ex-husband, [private], engaged in sexual and other intimate relations (collectively, the "Video"). Ms. [private] is a co-owner of the copyright in the Video. The recent publication, distribution and exploitation of the Video has occurred without her consent, approval, authorization, or any other valid rights to do so.

It has come to our attention that you are intentionally directing visitors to your website, www.defamer.com. to the website, www.fleshbot.com. which allows them to illegally view certain images from the copyright-protected Video and then link to the Video, in its entirety. Specifically, the Video and images are being made available from and/or displayed at and through the following URL's:
http://www.defamer.com/
http://www.fleshbot.com
http://www.fleshbot.com/sex/celebrity/carolyn-murphy-sex-tape-finally-168316.php

As you surely know by now, a felony arrest recently occurred with respect to the release of the Video, and a criminal case has been initiated against Mr. Schroeder. Furthermore, Deputy District Attorney Christopher M. Cattran of the Placer County District Attorney's Office in Nevada is currently pursuing additional arrests and indictments with regard to the illegal possession, distribution, sate and exploitation of the Video. Anyone acting in complicity with illegal possession, distribution, sale and exploitation of the Video may face criminal arrest.

The continued use, display and publication of the Video, as well as any still images from or previews of the copyright-protected Video, constitutes an express violation of Ms. [private]'s copyright for which you and all others involved in the posting, publishing, and distributing of the Video will be exposed to a multi-million dollar judgment for substantial compensatory damages and punitive damages.

Please immediately confirm in writing that you will and have complied with the above-stated demands. Should you fail to immediately comply with the attached DMCA Notice, our client shal pursue all of her legal rights and remedies against you, including injunctive relief and the impositior of millions of dollars of damages.

Enclosure
cc: Ms. [private]
[private], Esq.
[private], Esq.

Digital Millennium Copyright Act ("DMCA") Notice

I, the undersigned, CERTIFY UNDER PENALTY OF PERJURY that I am the owner or an agent authorized to act on behalf of the exclusive owner of certain intellectual property rights, said owners being named [private] ("IP Owner"). I have a good faith belief that the materials identified herein are not authorized by the above IP Owner, its agent, or the law and therefore infringe the IP Owner's rights according to state, federal, and/or US law. Please act expeditiously to remove or disable access to the material, websites and domains claimed to be infringing.

Per Federal Copyright Laws and the Digital Millennium Copyright Act Requirements, we hereby provide notice of copyright violations and request that you immediately remove the infringing content related to the copyright-protected Video, which appears and/or is illegally being displayed. published, exploited, distributed and/or being made available on the websites displayed at "http://www.defamer.com" and "http://www.fleshbot.com" at the following URL's:
http://www.defamer.com/
http://www.fleshbot.com
http://www.fleshbot.com/sex/celebrity/carolyn-murphy-sex-tape-finally-168316.php

Section 106 of the Copyright Act provides in relevant part as follows: "[T]he owner of copyright under this [Act] has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work ... (2) to prepare derivative works ... (3) to distribute copies . . and (5) to display the copyrighted work publicly." Any action inconsistent with or in violation of the IP Owner's rights as the copyright owner of the Video constitutes copyright infringement and subjects you to liability. See, Copyright Act, 17 U.S.C. Section 101 et. seq.; Digital Millennium Copyright Act of 1998 (the "DMCA"), Title 17, United States Code, DMCA Title II, Section 512(c)(3); CMAX/CIeveland v. UCR, Inc., 804 F.Supp. 337 (M.D.Ga. 1992).

If you require any additional information as concerns the above request, please contact me
Printed Name: [private], Esq.
Title & Company: LAVELY & SINGER PROFESSIONAL CORPORATION
Address, City, State, Zip: [private]
Los Angeles, CA 90067
Email: [private]@lavelysinger.com
Telephone: 310-[private]
Fax: 310-[private]

Signed under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

FAQ: Questions and Answers

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Question: Where can I find the text of the U.S. Copyright Act?

Answer: The federal Copyright Act may be found at http://www.loc.gov/copyright/title17/.

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Question: What is a right of publicity claim?

Answer: The right of publicity is a claim that you have used someone's name or likeness to your commercial advantage without consent and resulting in injury. The plaintiff generally must prove that you're using their image or likeness for advertising or other solicitations. Freedom of speech rights protect your use of a public figure's name and likeness in a truthful way, but you can still be liable if a court determines that your use implied a false endorsement. Here are a few examples of cases where the right of publicity was at odds with the Constitution.

A newspaper's 900 number survey to determine the favorite New Kid on the Block was found to be a constitutionally protected use of the band member's name
A newspaper's sale of a poster reproduction of its front page depicting Joe Montana was determined to merit protection under the First Amendment
A commercial featuring a robot resembling game show hostess Vanna White was found to infringe her right of publicity

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Question: What are the privacy torts?

Answer: Much privacy law is state law, and may differ from state to state. As general categories, states may recognize interests in:

unreasonable intrusion upon the seclusion of another;

appropriation of the other's name or likeness;

unreasonable publicity given to the other's private life; and

publicity that unreasonably places the other in a false light before the public.
(from the Second Restatement of Torts, ? 652A)

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Question: What rights are protected by copyright law?

Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:

(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.

The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.

Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.

Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.

The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.

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Question: What kinds of things are copyrightable?

Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium.

Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.

The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.

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Question: What is copyright infringement? Are there any defenses?

Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:

the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and
the market effect.

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.

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Question: What is a hyperlink?

Answer: Unless you typed the URL directly into your web browser, you probably followed a hyperlink to get to this page. A hyperlink is a location reference that the web browser interprets, often by underlining the text in blue, to "link" to another information resource when clicked. In HTML (HyperText Markup Language, the code used to write web pages), a hyperlink looks like this: link

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Question: If a hyperlink is just a location pointer, how can it be illegal?

Answer: It probably isn't, however, a few courts have now held that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material:

In the DeCSS case, Universal v. Reimerdes, the court barred 2600 Magazine from posting hyperlinks to DeCSS code because it found the magazine had linked for the purpose of disseminating a circumvention device. (See Anticircumvention (DMCA).) The court ruled that it could regulate the link because of its "function," even if the link was also speech.
In another case, Intellectual Reserve v. Utah Lighthouse Ministry, a Utah court found that linking to unauthorized copies of a text might be a contributory infringement of the work's copyright. (The defendant in that case had previously posted unauthorized copies on its own site, then replaced the copies with hyperlinks to other sites.)

By contrast, the court in Ticketmaster v. Tickets.com found that links were not infringements of copyright.

Like anything else on a website, a hyperlink could also be problematic if it misrepresents something about the website. For example, if the link and surrounding text falsely stated that a website is affiliated with another site or sponsored by the linked company, it might be false advertising or defamation.

Finally, post-Grokster, a hyperlink might be argued to induce copyright infringement, if the link were made knowing that the linked-to material was infringing and with the intent of inducing people to follow the link and infringe copyright.

In most cases, however, simple linking is unlikely to violate the law.

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Question: Is linking protected by the First Amendment?

Answer: The First Amendment to the U.S. Constitution says that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble..." The government (and states, under the Fourteenth Amendment) must meet a high level of scrutiny before restricting speech.

A hyperlinks refers to and describes the location of another Internet resource. The text of the hyperlink and the material linked to may be highly expressive. In addition, the act of linking to other websites may be likened to protected "assembly," or association with those sites.

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Question: Why does a web host or blogging service provider get DMCA takedown notices?

Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(c)m a safe-harbor for hosts of "Information Residing on Systems or Networks At Direction of Users." This safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by materials its users post, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.

Question: What does a service provider have to do in order to qualify for safe harbor protection?

Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]
Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].

Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?
Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.
Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.

Question: Does a service provider have to follow the safe harbor procedures?
Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.

Question: How do I file a DMCA counter-notice?
Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.

For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.

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Question: What does a request to "cease and desist" mean?

Answer: A request to cease and desist is basically asking the party to immediately stop the infriging behavior and then permanently refrain from it.

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Question: What does the "reservation of rights" language mean? What are they "waiving" at me?

Answer: Many C&Ds will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants.

Actress complains of link to sex tape

Topic maintained by USF Law School - IIP Justice Project