Hi, I am looking to open an adult based website, now I’ve done this in the past, but this time it will be a little different. I want it to be a membership site, BUT... The material I will be using is freely available on the internet; the only thing they will be paying for is access to it all in 1 location, with individual download and mass download links. What legal issues will I come up against if I sell the memberships for freely available pictures/videos etc? Baring in mind I have no U.S.C. 2257 Record-Keeping statement. - Is the 2257 record for those who originally took the photos? Or ANYBODY who publishes? Also the material that will be used is not copyrighted, it is all in the public domain, pretty much just what every day kind of people take and submit online. I can’t think of any other questions I have as of right now, but I would appreciate any other advice anyone has for me thank you! Carl.
I am not lawyer and could be wrong. But there are a number of issues that spring to mind. Do you plan on hosting the adult material? Or do you plan on creating mass links to other sites that host the material? If you're planning on hosting the material, I would assume the U.S.C. 2257 would apply. It sounds like most of the material you're trying to use is NOT in the public domain. Just because something is freely avaliable does not mean it is free to use as you please. I would conjecture that 99.9% of adult material on the internet is protected by copyright. Please review the case of Playboy v. Sanfiilippo, as it is germane to what you're trying to do. Sanfilippo scanned thousands of naked woman out of playboy magazines and posted them on his website. Playboy sued for copyright infringement at $285,420,000 ($500 to $100,000 per photo) but in the end was awarded $3.7 million. Make sure you're 110% postive the material you're using is really in the public domain. Then again, if you're not hosting anything (just providing links), that is a whole another case.
Klimt, thank you for your insight. The material that i will use will come from various sources. The images could be classified as "amateur" pictures taken in private and uploaded to the internet "supposedly" by their owners, often to websites who then publish them online. Now I know the law is very grey when it comes to amateur pictures, because the photographer does not actually hold a copyright for it, well they do but it wouldn’t stand up in court. - However I’m not sure about selling membership to see these images... Would it better for me to call this membership by a different name, for example... a Donation, so that all donators can view these images. As to the USC 2257, did a Google of it (which I should have done fist) but it seems to be Source for the above quote can be found here: http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002257----000-.html Code (markup): This to me seems i do not have to keep 2257 records, as i am not the producer of the material. Thanks anymore insight into this field would be greatly appreciated!
Carlix, you're exactly right about not keeping 2257 because you're not the producer. However, you're wrong about copyright being gray. The photographer, or his company, no doubt holds the copyright to those images. You'd either have to evaluate whether fair use would apply, ask for permission, or license the images. Otherwise, from what it sounds like, you are infringing on copyrights.
If those images are in a public place and consist of 1 or more persons whom did not know they were going to be photographed, then those photos are in fact in a grey area. If those photo's are in private, and all persons involved know they are in the photo then the photographer does indeed hold sole copyright to the images, however he still does not hold publishing rights, unless a written release is signed. Ok so, in theory a website such as: www.whale-tail.com Code (markup): Should not legally be aloud to have those images hosted on their server? Or does it only start becoming a major copyright issue when the 3rd party is profiting from those images? Which is why I brought up the idea of donation rather than subscription. Surely a donation means the people are paying to help support my website, not to access the images in the private area of the site? Thanks again for your response klimt!
You're getting into two different issues -- copyright and right of publicity. The person who took the pictures on that website would own the copyright to the images. Copyright law states that something is copyrightable as soon as it is fixed in a tangiable form.
ah ok, simple confusion on that issue then. So as i said before... Ok so, in theory a website such as: www.whale-tail.com Code (markup): Should not legally be aloud to have those images hosted on their server? Or does it only start becoming a major copyright issue when the 3rd party is profiting from those images?
It becomes a copyright issue, when the copyright holder believes their copyright has been infringed -- whether you're profiting or not. The copyright holder has exclusive rights to their work. Penalities for infringing on copyright are harsh and infringers can face civil and criminal liability. Right of publicity/privacy varies across the states. But, I would say, if he doesn't have the people in the photographs permission, he could very well be successfully sued and be forced to remove the photographs. You did say that the users of the site submit the photographs, who is responsible then, I figure, would be argued in court.
ok, i will take that all into consideration. I think i have a suitable loop hole to be able to deal with any minor issues, i wont be hosting any progfessional material anyway so the big boys wont be bothered. Once again, Klimt thank you for your advice.
Carlix, I wish you luck. I would also make sure your loophole is strong enough to be argued in court.
If you are aiding and abetting activity then you are equally as guilty. Simply look at what happened with the original Napster - they did not host any of the material on their servers simply the location of where they were stored but still they had to pay millions in compensation and ceased operations. Short of getting it directly from the photographer that they are happy for you to use the image then you are at risk of using or linking to images which are not copyright free. Our photographer does an amount of modeling photos and whilst they are not pornographic they do include nudity (art nude mainly) or implied nudity. He does love people that use his images without consent as his average settlement is £1,000 (approx $2,000) for breach of copyright where as the same magazines/ websites only pay an average of £500 for images they legitimately buy from him.
Chad Belville might be a good attorney to discuss this with. Or consider getting some (unprofessional) advice on a few of the adult webmaster boards.
Bearing in mind this material is entirely amateur, nobody has spent anything on making the pictures aside buying the camera origionally. - I dont think it too likely to actually have any problems over this from those people who origionally took the photo's. However im sure they would rather have their material removed than take me to court, since they do not make a living out of it. I have contacted him with several queries and i await his response. ------------------ If i were to allow public uploading of images to fill my content galleries, and had a disclaimer saying it is the responsibility of the uploader to ensure the pictures being uploaded are their own work and not stolen from the internet or other source. Would that ^^ cover me in the sligtest way?
I don't know if Mr. Belville provides free advice (I doubt it). There are some adult forums that you should read through to get an idea of the answer to your question
Our photographer doesnt spend anything on taking his pictures other than a few quid on petrol and a few pence on electricity to charge the batteries. It is ultimately a risk, you may deem it is a small and acceptable risk but you shouldnt dismiss it as totally impossible - the websites/ mags in question with our photographer are all "amateur" too. In reality 95% of the models are amateur but circa 50% of the photographers are semi-pro or above.
He did infact respond, and told me what i already knew, which was that i am liable for any content uploaded by myself or my users, and copyright issues would not be avoidable on that defense. i am open to risk, but it is a lesser risk when dealing with 100% amateurs, who have little to no understanding of copyright issues, nor the financial or mental backing to be able to go through a lengthy court battle, and trust me, i would draw and court battle out for as long as i could. It would be easier for them to request a picture removal and then me happily removing it, as happens all over the words internet sites who deal with amateurs. Ive broken quite a few copyright laws to be honest, im using aMember pro 3.08, and its a nulled copy, so i dont have to pay the $140, nor is it restricted to 1 installation. but then again, that is another matter that is more likely to become a real lawsuit!
Glad he helped you out some - you now hopefully understand what you will be up against. Amazing how helpful some people can still be at times. Well $140 is cheaper than having to get an attorney, go to court and pay court costs.
$140 is still $140 more than im going to pay for software i can get for free! also have Autorank Pro which is a directory script, which i lebelive cots $60 or $70, that was free too. Guess what im trying to say is, im not afraid of copyright issues, at least untill i actually get a knock on the door with several burley police officers with a warrant for my arrest and extradition!
Nah, you just get several burley bailiffs with a warrant to seize your property and computer equipment instead
Would anyone know if you would need a 2257 statement for site that only showed females in thongs, gstrings or topless with the back to the cameras(with or without showing their faces). I dont think so but I wanted to be sure. Thanks