Delivering (up) a copyright-based remedy for revenge porn

Despite recent progress in terms of the legal response to the problem of what is colloquially termed ‘revenge porn’, victims continue to face difficulties when seeking the removal of their private sexual images from third-party websites.

While victims who are able to assert authorship and hence copyright ownership of these images can rely on the notice and takedown provisions found in the copyright laws of many jurisdictions to compel their removal, victims who are unable to make such claims are left without a similar remedy. However, current proposals for victims to be recognized as the joint authors of such images, or to be granted a new exclusive right to prevent their distribution, would disrupt fundamental copyright principles in a manner disproportionate to their underlying aims.

This article puts forward an alternative solution, drawing inspiration from the recent settlement in Chambers v DCR: where a claimant has succeeded in obtaining injunctive relief against a defendant on the basis of the non-consensual distribution of the claimant’s private sexual images, a court may make a further order directing the defendant to assign any copyright they may have in the images to the claimant. This would function in a manner akin to the well-established remedy of delivery up.