Copyright Cases to Watch: Coton v. TVX Films

Filed as Features on October 22, 2007 1:28 pm

Many photographers dream of having their work displayed on the cover of magazines, DVDs and books. Likewise, many models dream of having their faces splashed across display stands across the country.

However, this was not how Lara Jade Coton envisioned her debut would be made.

In May if this year. Coton discovered that a self portrait, one taken when she was just fourteen years old, had appeared on the cover of a pornographic DVD entitled “Body Magic”.

In July of this year, Coton with the help of a Tampa attorney named Richard Harrison filed suit against TVX films for the infringement, quickly turning what was a PR disaster and source of public outrage into a copyright case with potential implications reaching deep into the blogging and photography world.

Background

Lara Jade Coton, more commonly known as simply “Lara Jade” is an 18-year-old professional photographer from the UK. In recent years, she has had her work featured in several magazines including SNAP Magazine and What Digital Magazine among others.

However it was one of her early works that brought her to the attention of copyright lawyers. When she was 14, she took a photo of herself wearing a top hat while sitting between two red curtains. She entitled the photograph, “No Way Out” and posted it to several of her online accounts.

What happened next is unclear. According to TVX media, they obtained the image from another company, whom is unnamed in the lawsuit, and believed that they had rights to it. They then used the image on the cover of a re-release of “Body Magic” and found out later that the photo belonged to Coton.

However, according to the lawsuit, when Coton tried to bring the matter to TVX’s attention, she was initially treated rudely. According to her, Bob Burge of TVX said the following in one email in February:

“Not only will you not be compensated for your photo we have turned this problem over to our attorney it seems the company my graphic company got the photo from on the internet is a public domain operation. You knew this when you originally sent us your scheming letter. Nice try toots. We are still going to remove you from the art, not because of your claim but let’s face it your picture means very little to the film.” [sic throughout]

In May, frustrated at her inability to get the situation resolved, she then posted about the issue on her deviantArt account. Though there was an outpouring of support, she could find nothing in the way of legal representation. This was largely due to the international nature of the case and the likelihood that the damages returned might be minimal.

However, over a month later, she had secured the services of Harrison. Harrison sought to prove that TVX films was still making use of the image and purchased several copies of the DVD. However, when they arrived, the cover art had been changed. Convinced that there was little he could do, he almost dropped the matter until, almost a week later, he opened one of the cases and found the photo printed on the DVD itself.

Shortly after that, in late July, Harrison filed suit in Tampa on Coton’s behalf seeking damages for copyright infringement, misappropriation of image and several other torts.

Where Things Are

The case is very early on. Though the lawsuit has been filed for almost three months, we are still waiting for any significant reply from TVX. They have filed a motion for dismissal on jurisdictional grounds but have not answered any of the charges according to Harrison.

However, this type of pacing isn’t terribly out of the ordinary. We will know more about this case once we hear back from TVX Video and more facts may come to light then.

What’s At Stake

If you are a blogger, photographer or both, there is a lot at stake in this case. Though the emotions understandably run high in this matter, some of the legal questions are very important too.

First, there are clear international and jurisdictional issues in this case. Coton is in the UK, TVX Video is based in Houston, TX and the suit is being filed in Tampa, FL. One of the most frustrating elements of dealing with copyright infringement that takes place on the Internet is pursuing plagiarists in other countries as, generally, you have to go to them in order to file a suit. Though there have been some rulings in this area, international law remains murky in many places and this could serve to clarify it.

Also, if Coton is able to bring the suit forward in Tampa, it may help cases that are domestic but where the company or individual doing the infringing is in another part of the country.This could not only greatly reduce the burden placed on those filing copyright infringement suits but could also put an equally large burden on potential defendants when trying to answer to the suit.

These issues are somewhat muddled because TVX is a nation-wide business, but jurisdiction is not an area of law I deal well with and would like to leave these questions to the lawyers out there.

The larger issue, however, deals with commercial use of one’s work and just how much in damages one can claim for that. TVX Films used the photo in order to sell a DVD, what portion of the DVD sales might belong to Coton remain a mystery and how much she can claim in punitive damages is a mystery.

Finally, depending on the facts of this case, it could delve into areas of third party liability. If TVX Film did get the image from another company and did believe they had rights to it, are they liable for the damages before they found out otherwise?

That could have implications to bloggers and Webmasters that get material from other persons including guest bloggers and editor-controlled user submissions. Though the DMCA protects those who post content to the Web solely at the direction of users, those who have some level of control over the content might need to look to this case for more guidance.

What it Hinges On

The jurisdictional issues come first, obviously. If those can be surpassed or the lawsuit refiled in the correct jurisdiction, then a whole slew of other questions come up.

First, did TVX Films act maliciously or recklessly? What was the role of the third party? Who are they?

Also, how much is the the image worth per DVD sale and how much punitive damages, if any, should be awarded? Will the fact that the DVD involved was pornographic play any role in it?

These questions will have to be answered by the judge and will depend heavily on his personal opinions on the matter. Frequently, these are areas of copyright law that are open to interpretation and take a few cases before the matter gets resolved properly.

Your guess is as good as mine as what elements will sway the judge one way or another in this case. Likely, the ruling will reveal as much about the reasoning as the arguments before it.

What is Likely to Happen

The jurisdictional issues seem likely to trip this case up. The fact that it is filed in Tampa when the company is in Texas indicates a clear problem for the case. It will likely be thrown out on those grounds and then either have to be refiled or abandoned.

However, that would not be a satisfactory ending, for either Coton or the public at large crying out for some sense of justice. Still, it seems to be the most likely one right now and, as frustrating as it would be to have such a charged case thrown out on a technicality, we need to be braced for it.

But if the case does get tripped up and dropped on those grounds, there is still hope for some vindication. Two other alleged abuses by TVX Films have been discovered and neither of those photographers seem to be very happy about it either.

But if the Coton case can overcome the hurdles before it, I expect it to go back and forth for a long time with many sordid details coming out. The entire world could quickly become intimate with the inner workings of both TVX Films and the porn industry at large.

I don’t expect this one to end in a settlement and, if it does, I don’t expect it will be cheap or easy. A jury is likely to side with Coton very strongly in a courtroom as the defendants are far from sympathetic. Both sides seem to be ready to fight this one out, though the logic of the plaintiffs is in question if they do.

This one, as they say, could get very ugly.

Conclusions

A lot of times, copyright law is very dry and very boring. This is not one of those cases.

This is the kind of abuse that can bring even the staunchest pirate’s blood to a boil. It seems that everyone agrees that this kind of use is unacceptable, on multiple grounds, and that something has to change.

However, all copyright cases, even the ones like this with charged issues around them, come down to the boring details that make the law so difficult to understand and follow.

Though it isn’t very satisfying to see a case receiving such outrage be boiled down to dry issues of law, it is exactly what has to happen for the system to work.

All that we can hope is that this dry and dull system not only breaks the issues the right way, but also returns a result that makes everyone happy.

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  1. By David Kierznowski posted on October 22, 2007 at 10:58 pm
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    Jonathan, I would love to pick your brain for some aspects of the blogsecurity.net project.

    Web 2.0 is certainly springing a whole new age of copyright, privacy and censorship issues.

    Reply

  2. By Jonathan Bailey posted on October 23, 2007 at 12:47 am
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    David: Feel free to send me an email at jonathan at plagiaismtoday dot com and I’ll get back to you!

    I look forward to hearing from you!

    Reply

  3. By yona loriner posted on October 23, 2007 at 2:57 am
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    i think you have to understand that copyrights are a little more complicated than that

    Reply

  4. By Lorelle VanFossen posted on October 23, 2007 at 3:58 am
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    Oh, Jonathan, my hero, this is one of those cases that tickles my copyright protection heart to no end. Thank you for bringing it to light for us.

    I’ve been involved and watched many similar cases dealing with photography, so this one will be on my watch list, without a doubt. One case involved a photographer who was traveling with his wife. They randomly chose an interesting restaurant with a second floor balcony, went upstairs, sat down, and stared at his photograph painted on the side of a building across the street.

    He won, in spite of the fact that the photograph had been copied in paint, mostly because the accuracy of the painting was accurate right down to the sparkle in the deer’s eye on the wall. Every detail. But what a shock and how it made for a miserable meal. It took a long time to process, but it set a standard for copying in a different medium.

    The jurisdiction issue is one that may, as you say, kill this, but I’m with the wronged parties. I do hope they can get to the person/company who misrepresented the usage of the photograph, as they are the real criminals, if not to the users of the image.

    Thanks again. This is wonderful and will definitely create new law if it gets that far. Wow.

    Reply

  5. By Jonathan Bailey posted on October 23, 2007 at 4:21 am
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    Yona: I have to say that I’m a bit confused here. Is there something I’m overlooking? I realize these issues are complicated and that this article doesn’t do it justice (no 1000 word article can ever go over all aspects of a copyright case) but is there something in particular you feel that I’m missing.

    Lorelle:I couldn’t agree more, this is one of those cases that got under my skin very bad. I talk regularly with Harrison about this case and he keeps me in the loop. More than just a copyright interest, I have a personal sense of outrage in this matter.

    Still, it is a strange case with many aspects floating around. I don’t think the question of a different medium has much play in here just because it is obviously a direct copy, the question is how much is the company liable for? I doubt that anyone would make a case that there was no copyright infringement in this use.

    However, as we’ve both said, this one will likely hinge on jurisdictional issues. However, even if it does get tossed out, I don’t expect it to end there. Others are looking at this company closely and there is always the possibility of a refile.

    Copyright infringement is the same in sunny Tampa as it is in the Texas desert. I don’t think they’ll be able to run far from this one.

    Reply

  6. By Chris Osborne posted on October 23, 2007 at 11:40 am
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    Great article, I know I’ll be keeping a better eye on how things go. I’ve seen it talked about a few other places, but this is the best I’ve seen for both background and new information.

    But it made me think of something. Shouldn’t TVX also be held liable for using a photograph on an underage individual in connection to pornographic material? I realize it’s essentially a different case, but also one where the evidence seems overwhelming.

    Reply

  7. Infringement Sucks | Photography BayOctober 24, 2007 at 2:45 am
  8. By Jonathan Bailey posted on October 24, 2007 at 4:58 pm
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    Chris: An excellent question. I actually looked this one up when the case first broke and I forgot to mention it in here.

    The problem is this, those strict government laws about the age of stars in adult movies only deal with those in the actual movie and specifically those performing the sexual acts.

    Since Lara Jade was not in the video and was not unclothed or otherwise engaging in a sexual act, the fact that she was fourteen at the time doesn’t enter into it.

    I find this disgusting because it means you could take a picture of just about anyone, even a child, and put it on the cover of such a DVD and not face charges in that area. In fact, so long as you cleared the other rights, it could be completely legal.

    I find that horrible and both Harrison and myself agree that has to change and soon.

    Hope that clarifies it!

    Reply

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  10. Julianna Yau’s blog » A messy copyright situationFebruary 18, 2008 at 9:23 am
  11. A YouTube for artistsFebruary 18, 2008 at 12:00 pm
  12. By oda oyunları posted on March 8, 2008 at 3:24 pm
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    copyrights are very important we must be careful

    Reply

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