Page 36 - AVN August 2016

EXPERT WITNESS | | By Jonathan Gottfried
Cams and Copyrights Legal tips for webcam performers
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
their performances while they are
have a copyrightable work. Performers should not assume that their cam site is
recording their streaming performances on their behalf.
”If cam performers are not recording
being streamed, then they do not have
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
a copyrightable work.
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 has assisted Free Speech
Coalition and its members
in various legal matters, and
spoken at a recent FSC forum.
This is his first article for AVN. He
can be reached at jgottfried@bgrfirm.
com. This column is not a substitute
for personal legal advice.
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LEGAL NEWS