By Derek E. Bambauer. Full text here.
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.