Exposed

79 Pages Posted: 26 Aug 2013 Last revised: 18 Jun 2014

Derek E. Bambauer

University of Arizona - James E. Rogers College of Law

Date Written: June 16, 2014

Abstract

The production of intimate media – amateur, sexually explicit photos and videos – by consenting partners creates social value that warrants increased copyright protection. The unauthorized distribution of these media, such as via revenge porn, threatens to chill their output. To date, scholarly attention to this problem has focused overwhelmingly on privacy and criminal law as responses, neglecting the power of intellectual property doctrine to curtail harms and spur beneficial uses. Copyright law leverages an established, carefully limited system of intermediary liability that addresses the true risks of abuses, such as revenge porn. Importantly, copyright is also consonant with key statutory protections, such as Section 230 of the Communications Decency Act, that protect the thriving Internet ecosystem.

This Article proposes creating within the Copyright Act a right for identifiable people captured in intimate media to block unauthorized distribution and display of those images or video. It then uses the proposal, and issues for intimate media more broadly, as a window into contentious scholarly debates over the nature of authorship and the balance between copyright and free speech. The Article closes by identifying the rise of intimate media and its concomitant challenges as part of the ongoing revolution in information production.

Keywords: sexting, revenge porn, Section 230, Free speech, internet, privacy, copyright, First Amendment, authorship, media

Suggested Citation

Bambauer, Derek E., Exposed (June 16, 2014). 98 Minnesota Law Review 2025 (2014); Arizona Legal Studies Discussion Paper No. 13-39. Available at SSRN: https://ssrn.com/abstract=2315583

Derek E. Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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