X-rated photos posted by ex

December 6, 2005 9:33 PM

X-rated pictures posted on the internet. Any recourse?

A very close female friend of mind is devastated by some X-rated pictures taken by an ex boyfriend posted to the internet. She told me of the content, and they're very, um, hardcore. She went to the ex and he denies even having them. He says he erased them and someone must have 'hacked' his computer. His face isn't in any of them.

She realizes the pictures are out there and she can't put the cat back in the bag. But she wants to sue the ex. I realize she needs to see a lawyer about this, but was curious if anyone has any ideas on possibility of success.

posted by anonymous to law & government (41 comments total)

Secure the services of a competent tort lawyer immediately. But you are looking at public disclosure of private facts here. This does not constitute legal advice.
posted by Ironmouth at 9:41 PM on December 6, 2005

Your friend has no legal recourse whatsoever. The guy that took the images owns the images, provided they were not otherwise illegally obtained.

See Hilton, Paris ... also, Anderson, Pam.
posted by frogan at 9:45 PM on December 6, 2005

If she consented during the act, I can't imagine that she has much recourse now. Note to all women out there: don't let boyfriend/girlfriend take naked pictures of you unless you have them in an equally compromising situation (which, for most men I know, this does not constitute).

IANAL, but I third or fourth the lawyer advice. Yes, yes...you know that your friend should go see one. So stop reading AskMeFi and just make an appointment.
posted by SeizeTheDay at 9:52 PM on December 6, 2005

Bear in mind that a lawsuit is public record, and may come up when people run searches on her for a long time. Does she want her potential mortgage-loaning-bank to find out about this?
posted by MrZero at 9:55 PM on December 6, 2005

I'm not sure that frogan is entirely correct. People have prevented the publication of pictures, see Cameron Diaz. I don't understand why he wouldn't need a model release to publish photos? (ETA I never understood this about the Hilton tape either). My understanding of the Anderson tape was that it was stolen and it was illegal to distribute it.

Definetely see a lawyer- the site hosting the pictures is probably who they will go after unfortunately and not the ex.
posted by fshgrl at 9:58 PM on December 6, 2005

I think the fact of the matter is, regardless of any legal help you might get, the pictures are already out there, as you said. I'm not saying she shouldn't see a lawyer, but the best course of action might be to just let it go...especially if her name isn't attached to the pictures. There's lots of porn out there and without a name attached, no one is ever going to know its her. As MrZero said, a lawsuit is public record and is guaranteed to draw more attention to the issue...AND put a name to the face/ass.
posted by johnsmith415 at 10:06 PM on December 6, 2005

Re: Diaz - that was because she didn't sign to release the photos. She was modelling at the time, so she probably had a contract etc. defining that she had control over which photos were released.

I think it's best to contact a lawyer and see what the options are.
posted by djgh at 10:06 PM on December 6, 2005

instead of just being obnoxious, i'll make a substantive contribution. i guess. just this once.

in may of this year, an oregon woman named cecilia barnes initiated a lawsuit over a similar circumstance, but not against the boyfriend, but against yahoo!, which was where the boyfriend had posted the photos. here is an analysis of the case by a law prof, including some content that might be relevant to your friend's situation.
posted by sergeant sandwich at 10:09 PM on December 6, 2005

People have prevented the publication of pictures, see Cameron Diaz.

I believe you're talking about this:

A man who took topless photographs of actress Cameron Diaz ... was convicted of forgery, attempted grand theft and perjury at Los Angeles Superior Court.

I said "no legal recourse ... provided they were not otherwise illegally obtained."

In the Diaz case, the photographer tried to produce a forged model release (which is not legally the same as a boyfriend taking pictures of his girlfriend). Then he tried to extort Diaz and sell them back to her.

* Paris Hilton -- consensual act; images owned by boyfriend.
* Pamela Anderson -- could never truly prove the tapes were stolen, ergo, tapes owned (and marketed) by porn company.
* Latest story is Jennifer Aniston: Her claim was that the photos were obtained via trespassing when she had a reasonable belief of privacy.

I'm sorry, unless it wasn't consensual and there was no other verbal or contractual agreement, there's no case.
posted by frogan at 10:11 PM on December 6, 2005

djgh- I'm a photographer and I can't just go out and take photos of you and sell them for profit (unless they are "editorial" in nature). Even if you gave me a verbal agreement I couldn't use them commercially without a signed release, a modeling contract usually gives the model less control over the images than a private citizen would have.

I don't know how that applies to video or to the web exactly but you can certainly get stuff taken off individual host sites and the sooner the better in this case.
posted by fshgrl at 10:14 PM on December 6, 2005

I couldn't use them commercially without a signed release

The key term being commercially. The ex-boyfriend obviously received consent. If he simply posted them online with no monetary gain, does he still need a contract?

Note: a couple years ago a girl (from FSU) won a lawsuit against Girls Gone Wild because they forgot to get her to sign a release form. In fact, I think it was a thread here at MeFi.
posted by SeizeTheDay at 10:20 PM on December 6, 2005

I'm a photographer and I can't just go out and take photos of you and sell them for profit

Yes, you can. Newspapers and tabloids do it every single day.

If I'm in the public space and you're in the public space, you can take my photo, slap your copyright on it and sell it to whomever you want.

Now, what the photo is then used for ... well, that could be an issue (e.g. you can't put my face on a Wheaties box without paying me). But that has nothing to do with the commercial ownership of the original photograph.
posted by frogan at 10:20 PM on December 6, 2005 [1 favorite has favorites]

Yes the actual details of the law are pretty meaningless in terms of taking the photos off the internet.

Call the company whose website they're on and say you're going to sue. They'll probably just remove them right away.

Here's a question: how did she come to find out they were online? It's not the kind of thing that happens by accident. I hear there's quite a lot of porn out there...
posted by AmbroseChapel at 10:22 PM on December 6, 2005

Here's the link to the discussion on MetaFilter regarding the Girls Gone Wild case.
posted by SeizeTheDay at 10:24 PM on December 6, 2005

If he posted them she likely has recourse. She needs to see a lawyer. At the very least the lawyer should be able to get them taken off of the site where they have been posted. She could probably even take care of this herself, but if she is going to sue her ex she should contact the lawyer first just so that the evidence is properly preserved.
posted by caddis at 10:28 PM on December 6, 2005

Ambrose - My best buddy ran into some pictures of his cousin online while surfing porn. (Talk about a stiffie-killer...) Sites like Pornolizer, Fusker, and other things that are linked from sites like Fleshbot allow you to browse through an absurdly massive amount of pornography very quickly. Chances are, someone who knows her told her they were out there... also hence the violent reaction of, "I'm gonna sue the motherf***er!"
posted by SpecialK at 10:33 PM on December 6, 2005

Yes, you can. Newspapers and tabloids do it every single day.

That's the editorial content bit. If it's in the public interest etc. etc. you can publish it without permission.

If he simply posted them online with no monetary gain, does he still need a contract?

The question is where he posted them: can't be on his own site if he claims they were stolen. If it's on a pay per view porn site then I imagine the site would take them down immediately if threatened with legal action. If he posted them on some other type of free site who knows? I'd think the hosting site not the ISP would be legally vulnerable here. Your friend really needs to lawyer-up asap .
posted by fshgrl at 10:35 PM on December 6, 2005

Oh, and IANAL, but ... the first question out of the judge or other lawyer's mouth when the case is in court is going to be, "Did you or did you not consent to the pictures being taken during the acts that you were performing?"

If she answers that she didn't, and there's more than one or two pictures, there's going to be some uncomfortable follow-up questions. I helped handle a case back when I was clerking where an ex-husband in the middle of a nasty custody case with his ex-wife released some pictures that were probably similar in content, but as he was the photographer and there were about fifty pictures, the judge threw it out because the husband owned the copyright and the woman had apparenty consented in her position as his wife and partner because there were many pictures and she's smiling and posing for the camera.

She can get them removed by sending a letter to any site that's posting them, but she'll be doing that for the rest of her life.
posted by SpecialK at 10:37 PM on December 6, 2005

Did he post them on his own site or a porn site? I'm guessing a porn site will take them down if you (err, your close friend) request it, because whether or not you have a legal case there's no reason for them to fight it out in court. Due the nature of porn sites they'd prefer to avoid litigation in general, since you never know when some DA will decide he needs to go after the family values vote, and these particular photos are going to account for an infinitesimal proportion of the site's revenue.

Also, I'd concur with johnsmith415 — having the pictures out there on some porn site has a much lower potential for embarrassment than filing a lawsuit. If the pictures are posted sans name, nobody is going to say in, for example, a job interview, "So, I was looking for some good porn the other day and I saw this chick that looked like you — what's that about?" Whereas anyone who runs a background check stands a good chance of coming across any lawsuits you've filed, and you won't have any sort of plausible deniability with your name on a lawsuit.
posted by IshmaelGraves at 10:42 PM on December 6, 2005

I'd second first and foremost investigating the fact that she may be able to effectively get them off the internet. If she's not famous, and the pictures are just your average amateur hardcore, there's no particular reason for them to proliferate and whoever is publishing them probably does not want the hassle of a angry litigious "model". Its quite possible she could nip it in the bud, and nekkid filthy pictures are so ridiculously available that there's no real incentive for anyone to go to a lot of trouble to keep these "out there," except for this piece of shit lying coward ex-boyfriend who is certainly responsible.

On that note, even if suing is not really a realistic option (and if she doesn't want more exposure for a dubious outcome, it probably isn't) she might still want to have a lawyer professionally threaten him with a lawsuit as a deterrent against rerelease. She could also try convincing him she is serious enough to get him to settle for at least the legal fees.
posted by nanojath at 11:20 PM on December 6, 2005

(IANAL)

According to 18 USC 2257 any US-based commercial website must have her name and D.O.B. If the pictures were posted without her name attached, that might be one angle for getting them removed.

Regardless, they are already on the loose and probably will continue to circulate through email or usenet. That said, the chances of anyone she knows running across those images is minimal. Since she can't do much about it either way, I think the best thing for her to do is to look at the kinky side of it (seriously) and feel flattered rather than debased.
posted by ori at 11:22 PM on December 6, 2005

IANAL, either. If she was not a minor at the time (if she were, he's in deep poo), she consented to the pictures being taken and Ex received no money or other consideration in return for the pictures from wherever they ended up online, I suspect she's out of luck. As the photographer, and in the absence of any other contract (eg. a work-for-hire arrangement with an employer or client), he owns the copyright and is therefore free to do what he pleases with them.

If he did receive payment, she might be able to recover some or all of what he was paid, but realistically, it's utterly unlikely to be a huge sum, and I doubt that would satisfy your friend's primary motivation for legal action. Stretching things, perhaps she could go after him on a compensatory, "mental anguish" angle, maybe there's a lawyer willing to tackle it as a test-case, but I've never heard of it, would be very surprised if it worked and it wouldn't be worth it unless Ex is very rich.

If someone else (like a website) is profiting from the display of the pictures without her consent or a signed release, she can probably get them removed quickly with a well worded letter from a lawyer, but suing them is likely to be expensive and unprofitable. If the pictures were or have since been posted to a newsgroup, forget it.

Best damage limitation might be to keep quiet about it and ask any friends who know to do the same. It's a handful of pictures in a huge ocean of porn.
posted by normy at 11:25 PM on December 6, 2005

I was under the impression Paris Hilton wanted the tape to stay in the public domain while appearing to want otherwise, on the any publicity is good publicity principle. Certainly it gave her the notoreity she seems to crave.
posted by Rumple at 11:44 PM on December 6, 2005

I'm with you Rumple. Hilton herself may not be the sharpest tack, but who ever runs her PR is brilliant.
posted by raaka at 12:34 AM on December 7, 2005

Paris Hilton most certainly did not want the tape in the public domain.

That is, she wanted her cut =)

The site that distributed the video commercially had a model release from her, as well as full 2257 documentation. ... and she received her fair share.

( see the first entry here for more info. )
posted by mmdei at 1:46 AM on December 7, 2005

IANAL.

What is the point of the lawsuit? To remove the pictures? To hurt the boyfriend? To get a lot of money? All of the above?

There may be alternative ways to accomplish each of those tasks.
posted by craniac at 5:35 AM on December 7, 2005

food for thought:

the fact that a woman in a relationship consents to having her boyfriend take intimate pictures of her does NOT constitute consent to publishing them (for commercial gain or not). sounds like a privacy issue which should give grounds to demand from third parties to remove the pictures from the web and damages from those responsible for publishing intimate pictures without consent.

but all this is principle. the person to consult would have to be a local lawyer.
posted by mirileh at 6:44 AM on December 7, 2005

Backing up a bit:

Why does she want to sue the ex? Does he have a lot of money that she wants? Or does she just want revenge?

If she's looking for revenge, I doubt that suing him will leave her satisfied. It will simply extend the trauma of this whole episode. Her life will revolve around it for months or years to come. In the end, even if she is successful at "winning" her case, it is likely that she will be harmed more than he is by the whole ordeal, simply because the pictures show her face, not his, and because of the stigma our society puts on women+sex that it does not put on men+sex.

If she's looking for money, that's a different matter. But if she's looking for revenge, I'd suggest she consider other options than suing.

On a separate note: does anyone know how common this is? How much of the "amateur" porn on the web was posted without the consent of the people in them?
posted by alms at 6:59 AM on December 7, 2005

Well, if 'she can't put the cat back in the bag', the best thing for her to do is to draw as little attention to them as possible. Filing a law suit and raising a big stink is not the way to do this.

There are millions of pictures and videos of amateur porn floating around the internet and the probability that someone that knows her will see the pictures and think they're her is exceedingly remote.

But hey, if she wants to sue and have the pictures publicized and have her name attached to them for eternity, go right ahead.
posted by driveler at 7:18 AM on December 7, 2005

Yes, suing is an incredibly bad idea. Assuming that the photos were posted without her name attached: i) the chances of anyone she knows coming across them are extremely small and ii) she has plausible deniability ("Ha! No, she just looks like me...")

If, on the other hand, she sues, then there is a very good chance that her name will be available for all to Google in the future. Also, these cases are very rare so the media would be likely to pick up on it quickly. I'd even be cautious about sending a legal letter to the site since some sites (Piratebay and SA spring to mind) seem to take a perverse delight in publishing all legal threats they receive. If her name is on the letter, it will turn up in Google eventually.
posted by blag at 7:22 AM on December 7, 2005

A lawsuit is the last resort. The key is removal of the pictures. You may have to sue to do that, but a competent attorney will explore other options first.
posted by Ironmouth at 7:27 AM on December 7, 2005

A lawsuit is unlikely, but asking a site to remove the pics is a good start. Most will. And there's gonna be no lawsuit against the boyfriend unless she can prove damages. Better to call up his current girlfriend and give her an anonymous heads up that he likes to publish. Or pour sugar in his gas tank.
posted by klangklangston at 8:15 AM on December 7, 2005

mirileh writes "the fact that a woman in a relationship consents to having her boyfriend take intimate pictures of her does NOT constitute consent to publishing them (for commercial gain or not)."

Absent a model release or something else in writing it becomes a case about a verbal or even just implied understanding about what the photographer can do with the pictures. With out a work-for-hire agreement of some sort or other contract ownership of the photos lies 100% with the person taking the pictures. And for non commercial use there is little the photographee can do to prevent distribution unless she can get a judge to believe her over the ex that they had a "keep it private" agreement.

Much better to let it lie, nothing gets stuff posted around like having a take down notice enforced or recieving threatening letters from lawyers.
posted by Mitheral at 8:29 AM on December 7, 2005

"But she wants to sue the ex."

For what, exactly? And does she have any evidence?

anonymous really needs to learn how to better frame her questions. This one is so ambiguous, it is meaningless.
posted by mischief at 8:30 AM on December 7, 2005

IANAL, but if you can prove that the ex intended to harm the reputation of the gal by posting such pictures, you may have a pretty good case for a libel suit..
posted by vanoakenfold at 9:42 AM on December 7, 2005

Hell, vano, from the sounds of it, she can't even prove the ex posted them in the first place. Plus, the onus will be on her to discover every instance of every picture.

Her lawyer's retainer is going to be pretty damn steep.
posted by mischief at 9:52 AM on December 7, 2005

Give it up. This is like trying to put Silly String back in its can. Can't be done.
posted by five fresh fish at 10:19 AM on December 7, 2005

Here's the thing about getting a lawyer and suing..

Where did this take place?

Do you think that a host based in Romania or Sweden is going to take down photos just because some lawyer in America sends them a letter? Generally, no, that won't happen. I've had web hosting customers in the same boat. More often than not, trying to get foreign based companies to comply with stuff like DMCA takedown notices is futile. Total waste of time.

If she was at all hot, the photos are on Usenet by now anyway. five fresh fish said it - like silly string back into a can. There's very little that she can do about this. She can lawyer up all she wants, but that's not going to do a whole lotta good other than making her name public in the lawsuit and costing both parties a bunch of money.
posted by drstein at 11:02 AM on December 7, 2005

Mitheral,

And for non commercial use there is little the photographee can do to prevent distribution unless she can get a judge to believe her over the ex that they had a "keep it private" agreement.

I would think that in most cases intimate photographs between a couple (not casual partners, taken in a private setting) would be found to be implicitly private.
posted by mirileh at 12:44 PM on December 7, 2005

I think some people are missing the point of the question. Anonymous has already acknowledged that attempting to get the pictures off the internet is impossible; he/she is asking if the friend has any chance of suing her ex for damages, which is an entirely different proposition.
posted by chrominance at 1:26 PM on December 7, 2005

chrom: no one ever reads the questions.
posted by mischief at 1:47 PM on December 7, 2005