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January 27, 2016

Cam Performers and Copyrights

[Editor's note: This is attorney Jonathan L. Gottfried's first appearance on AVN.com, but he has already been assisting Free Speech Coalition and its members in various legal matters, and spoken at a recent FSC forum. AVN is happy to welcome aboard another legal mind who believes in free adult sexual speech.] Let’s say you work at a film studio. You discover that your movies have been uploaded to a tube site, without your company’s permission. What do you do? Most companies’ reaction would be to send a takedown notice under the Digital Millennium Copyright Act (“DMCA”). The tube site may not respond. Even if it removes the content, the video may be re-posted by someone else within a few hours. Nonetheless, a DMCA takedown notice is inexpensive and occasionally effective. Now assume that you’re a cam performer who finds videos of your performances posted, without your permission, to a website. What do you do? Again, most people would suggest a DMCA takedown notice; but there are unique problems faced by cam performers. Problem No. 1: There may be no copyright In order for a work to be copyrightable, it has to be (according to U.S. law) “fixed in any tangible medium.” It can be chiseled in stone. It can be carved in vinyl. It can be stored digitally. But it must be saved somewhere. If cam performers are not recording their performances while they are being streamed, then they do not have a copyrightable work. Performers should not assume that their cam site is recording their streaming performances on their behalf. Imagine that a fan uses an iPhone to record a performer on Chaturbate without the performer’s permission. The fan later posts that video to a tube site. The performer cannot send a DMCA takedown notice unless the performer has his or her own recording of the streaming performance. That’s not to say that the performer may not have other legal options. But the cheap, sometimes-effective DMCA takedown notice is not one of them. Problem No. 2: You may have signed away your rights Cam performers generally sign a contract with their cam site. In some of those contracts, the cam performers sign away rights associated with their performances. This creates an obstacle for the cam performer who wants to send a DMCA takedown notice. For example, performers’ contract with LiveJasmin states: "I hereby expressly… transfer… definitively, irrevocably, and exclusively to Website Operator… any and all existing and future author rights… and all other intellectual property rights… of every kind and character… throughout the world, related to the results, content, and proceeds of my/Studio Performers appearance(s)… on the Websites… as well as… any and all contents…." The problem is that, in order to send a DMCA takedown notice, the person sending the notice must be acting on behalf of the copyright owners. If cam performers have signed away all rights associated with their performances, then they cannot claim to be the copyright owners. In that situation, the cam performers must hope that the cam site is willing to assist with a takedown notice. Other cam sites make it easier for performers to send DMCA takedown notices. For example, Chaturbate’s terms state that: "We do not claim any ownership rights in the… video… or any other materials… that you transmit… on… the Service. After posting the Materials on… the Service, you continue to retain any such rights that you may have in them…." Because the performers on Chaturbate keep the rights associated with their work, they have more control over the sending of takedown notices. They can send their own notices or permit others to send notices on their behalf. In short: cam performers should read the contract with their websites to see if they have retained the rights to recordings of their performances. Problem No. 3: You may be compromising your privacy DMCA takedown notices require the complaining party to submit personal information, such as a name and address. Websites that receive takedown notices may publish that personal information online. Cam performers who value their privacy may not want their legal names and addresses to be associated with their online personae. But this is a problem with a ready solution. Cam performers can authorize someone else to send the takedown notice on their behalf; and plenty of companies will search for infringing content and send notices for a fee on behalf of performers. Lessons Cam performers should pay more attention to their intellectual property. Better protection can help performers to remove unauthorized uploads of their performances and to monetize their work. Performers should: • Make sure that their streaming performances are recorded so that they can claim copyrights in their works. • Read their agreements with cam sites to see what rights are being kept…and what rights are given away. • Arrange for a third party to send DMCA takedown notices on their behalf in order to protect their privacy. Jonathan Gottfried is a Los Angeles attorney, whose practice focuses on intellectual property and general business disputes. He can be reached at jgottfried@bgrfirm.com. This column is not a substitute for personal legal advice.

 
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