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Florida court breaks new ground in copyright claim

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A porn baron was served with an expensive reminder last week that the courts take a dim view of companies ripping off other people's creative work.

A court in Tampa, Florida ruled against Texan pornographer Robert Burge and his company TVX, and gave almost $130,000 in damages to 21-year-old UK fashion photographer Lara Jade Coton.

The story begins over seven years ago, when 14-year-old Coton was just starting to develop her interest in photography and modelling. Wearing a top hat and tasteful black dress, she set the timer on her camera, posed between two red curtains and snapped a simple self-portrait. This pic, along with a selection of equally restrained shots, were then posted on her Flickr account.

Coton was therefore not amused to learn, shortly after, that the image had been appropriated by a Texan company as cover art for the re-issue of the 1982 (pornographic) film "Body Magic".

After a little sleuthing of her own, she discovered that the film had been produced by Texas-based TVX. She wrote to their CEO, Robert Burge, asking for an explanation. The response she received was less than polite.

According to Coton, Burge's verbatim (all-caps) response was: “I’M SURE BY THE END OF THE MONTH YOUR FACE WILL BE HISTORY. WE HAVE STOPPED SELLING THE DVD UNTIL COVER IS REPLACED. WE HAVE FURTHER CHECKED OUT YOUR NAME AND IT'S NOT LIKE IT’S A HOUSE WHOLE (sic) NAME. ACTUALLY, REMOVING YOUR IMAGE WILL HELP IMPROVE THE SELL (sic) OF THE DVD.. SO FAR IT BOMBED. THEY ARE REMAKING THE COVER AS WE SPEAK SO YOUR TEN SECONDS OF FAME WILL SOON COME TO AN END.”

Adding insult to injury, as the matter started to snowball on the web, TVX – or individuals acting on their behalf - were quick to leap to the company’s defence. Here is one posting on the UK-based EPUK, under the user name TVXfan: "What most people don’t realise is that Lara Jade is not the sweet virgin she has advertised herself as in this hillarious (sic) event. No one has any clue if Lara Jade is in fact a real person, as she refuses to divulge any identification to anyone...we smell a scam."

Initially, the case looked as though it would go nowhere. Coton had not registered the copyright of her picture in the US, which is a usual requirement for proceeding in respect of copyright in the US - and the likely legal fees were prohibitive.

All this changed when Coton was contacted by Tampa-based attorney Richard Harrison, who agreed that he and his firm, Allen Dell, would take the case on a contingency-fee basis only.

There followed many months of legal wrangling. At first there was the problem of finding instances of the offending DVD. Following the initial complaint, TVX had changed the cover shot, and Harrison was concerned that his legal team would be unable to prove that Coton’s image had actually been used.

Unfortunately for TVX, while they had changed the outer image, someone had forgotten to tell the production manager to change the image on the product as well – so the newly packaged film was still circulating on a DVD carrying the offending image.

There were issues around whether a Florida-based court had a right to hear this case. There were also problems with TVX’s representation, which twice had to be changed for procedural reasons - together with representations from Burge himself that ranged from strange to seriously bizarre (pdf).

Still, the case wound onwards, with judgment finally being handed down in September of this year. For those looking for rich pickings in respect of copyright, the result may be slightly disappointing: the final award consisted of $100,000 for defamation, $25,000 for misappropriation of image – and just $4,173.20 for the copyright breach (no: we don’t understand why the judge came up with that figure either).

Since TVX is based in Texas, widely regarded as a debtor’s paradise, it is questionable whether Coton will ever see more than a small percentage of that award.

TVX originally described the case as "hillarious" (sic) - the same misspelling that occurred in the comment of their "fan".

Last word, however, went to Coton, who writes on her blog: "As photographers using the internet, we often get people stealing our work... I hoped that fighting this case would give inspiration to many other young (and older!) photographers out there that copyright IS an issue. You can’t just go and steal an image that doesn’t belong to you and use it for commercial gain – if you’re going to steal images online then people WILL find out and they CAN sue you!" ®

*This story has been corrected - Lara Coton is now 21, not 18 as originally stated.

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