Having presumably gotten all of us to take the bait, appropriation artist XVALA has backed off and announced that he will not include versions of hacked photographs of Jennifer Lawrence, Kate Upton, and others, in a show entitled “No Delete.” The show will instead include, apparently, “the artist’s self-shot, life-size, nude images.” So, there’s that.
With that said, a few points came to mind after first considering the issue on Tuesday. First, it is important to remember that the copyright protection that the celebrities/authors could claim in their photographs is not limited to this exhibition. Anyone circulating the pictures would be an infringer. The possibility of an art exhibition raised the prospect that XVALA might claim fair use, but garden variety peddlers of such things could not plausibly do so.
The other is to clarify a point we made about injunctive relief. To be clear, no one holding a copyright in the photographs needs a court order to begin protecting herself. Under the Digital Millenium Copyright Act, any Internet Service Provider that receives a takedown notice can spare itself from infringement liability by complying with that notice. In a case as publicized as this, it is hard to imagine any ISP not doing so as quickly as possible. An injunction would simply strengthen the celebrity plaintiff’s hand.
So perhaps we were just trolled on this one, but it will be interesting to see if there are any further uses of copyright.
