Making Copyright Contingent for Porn

Ann Bartow (on Sivacracy) points to a new article available on SSRN entitled Pornography, Coercion, and Copyright Law 2.0. Bartow argues that, particularly with the growth of user-generated erotica, there is an increased potential for people to be depicted–either at all or in particular contexts–without their consent. To curb this abuse, she argues copyright should be contingent on new protections for the performers/subjects.

The article begins with a premise: that pornography is harmful enough to society that it deserves special censure. She notes, in passing, that she believes this is the case, and that she is proffering an incomplete definition of pornography. I would argue that these topics are unsettled enough that they cannot be put off so casually. Moreover, I don’t think they are necessary to her central argument, which is presented as being about pornography, but really should apply more broadly than that. She argues–correctly, I think–that pornography has become mainstream to the extent that it is created like “any other form of creative output.” But I don’t think she successfully argues that it should be considered differently.

She presents several scenarios in which it is clear that the subject of an image is unhappy with her depictions in online media (all but one case involve female subjects). One of those cases is that of Allison Stokke. (Normally, I would link to the Wikipedia article, but it was deleted–an issue in itself.) Stokke, for the few who are unfamiliar with her story, found herself an internet celebrity, after a number of photographs of her at pole vaulting meet were distributed on the web. In many cases, these photographs were placed in sexual contexts, and Stokke became the focus of a great deal of attention over a short period of time. As Bartow admits, the photographs are not, on their face, pornographic, even by her loose definition. But, she argues, under current copyright owners of photographs are under “no obligation to consider the feeling of their subjects” when they do things like display images on pornographic websites.

Especially given this example, the natural question is why we are dealing with this as an issue of pornography at all. Bartow compellingly argues that meager privacy protections offered by the law place the onus of prosecution on the victim, and that the rapidity with which viral images and videos are spread worldwide makes putting the genie back in the bottle is nearly impossible. There are real reasons to think that there is a need for reform of privacy laws, but by couching this in terms only of pornography, I think Bartow misses the boat. Why should there be special protection in this category? Why should Stokke receive more protection than, say, Star Wars Kid?

In other words, I agree, in part, with Bartow’s argument: the new ways in which images are captured and distributed make for a greater potential of damage to the people depicted in those images. This is particularly true of violent imagery, whether that is “gonzo” pornography or “bum fight” videos, but it is also true of images captured from our everyday lives. I think the problem is much more widespread–and ambiguous–than she presents here. Pictures of me have appeared on the web in contexts that I am unhappy about–as has my name–though not in sexually-related ways. It’s an unnerving experience, but that alone should not make it an illegal act.

At the end, the part of her argument least interesting, and least compelling to me, is the issue of pornography as a special kind of evil; to the participants, to their audiences, or to the culture as a whole. (As an aside, using Rimm’s “study” as evidence doesn’t serve to bolster any argument.) But the larger question of an imbalance of power over the image is an important one. This is as true of erotic material as non-erotic material, and of the unwanted mixture of the two.

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