Protection, risks, image and copyright rights… an update on the laws surrounding adult content on platforms

Me Alexandre Bories, avocat au barreau de Montpellier. Benoît Wehrlé

With technological advances, the digital revolution and social networks, online content is multiplying. For the creators or owners of these images and videos, it is often difficult to know the rights and laws that govern online platforms. Let's take stock.

The number of images and videos on the web is incalculable and is only increasing every moment. Although the rise of platforms is relatively recent, content creators struggle to protect their productions. Alexandre Bories, a lawyer at the Montpellier bar, specializes in intellectual property, digital and communications law. These are the specific parts that govern image rights, copyright, trademarks, etc. He recalls the laws and rights for content broadcast on the web.

Protection

While there is a lot of content, there are just as many risks. If they are reprinted, they can cause harm to the creator, both morally and financially. If several people are present in the photos or videos, it is all the more important to draw up a contract, according to the Montpellier lawyer.

“Creators who produce content together wonder about the rights of the people who accompany them. I have already drawn up contracts in this context. As for what is authorized or not to put online on the platforms, you have to look at the general conditions of the latter.”

It is necessary to clearly mention the authorizations of each person but also the exploitation rights of the images. “Image rights are not just the person's face, they can also be something that identifies them, such as tattoos. It is therefore better to have a contract that allows the person who will participate in the content to authorize the use of their image, and of course to ensure that they are of legal age. Finally, there may be issues related to the filming location, i.e. that the person's place or home cannot be recognized”, recalls Me Alexandre Bories.

The risks

In the event of resumptions, there may be several infringements, such as copyright or image rights, but also financial loss. As for income, it is possible to distribute the money generated either by an amicable agreement or through a contract.

Once your image is online, you no longer really have control over it.

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“It will depend on the contract. So we can say to ourselves: 'You know that such and such a person has a pornographic activity, that they make a living from it, so you authorize your image to be exploited'”. In the event that a photo is taken, without being credited, “there is an infringement of the right to image without a doubt. But the delicate question will be that of counterfeiting and copyright. Copyright does not take into account the merit of the work, regardless of whether it is fine art or pornographic content.”

Little reminder

"Any edition of writings, musical compositions, drawings, paintings or any other production, printed or engraved in whole or in part, in defiance of the laws and regulations relating to the property of authors, is a counterfeit and any counterfeit is a misdemeanor."

“Counterfeiting in France of works published in France or abroad is punishable by three years' imprisonment and a fine of 300,000 euros. The sale, export, import, transhipment or possession for the aforementioned purposes of counterfeit works shall be punishable by the same penalties. When the offences provided for in this article have been committed by an organised gang, the penalties are increased to seven years' imprisonment and a fine of €750,000”, we can read in article L335-2 of the intellectual property code, relayed on the site Légifrance.

“On the other hand, it applies when there is an original work. When we talk about originality, that is to say that there is, for example, a scenario. But, of course, it is studied on a case-by-case basis”, adds the lawyer, who specifies that these actions often occur abroad.

“There is still the limit of the internet. It is possible to take action because from a legal point of view there is an infringement, but as for the implementation, that is another thing. Even if it is beyond the French borders, there may be acts of copyright infringement. They know what they are doing, they know the risk. Once your image is put online, you no longer really have control over it”, warns Alexandre Bories.

If a person decides to take content broadcast on a platform, it makes no difference whether it is free or paid for by the person in question. On the other hand, the victim may suffer harm, since they no longer have any commercial exploitation. “But it's not because it's free that there's no infringement of the law”, emphasizes the Montpellier lawyer.

“There aren't many articles or litigation”

Digital law continues to evolve over time and the Montpellier lawyer also affirms that the platforms are relatively recent. “I've been a lawyer for about twenty years, but since the Covid pandemic, it is true that this type of case is more numerous. It is true that in pornography with regard to the law, there are many issues, in relation to labor law, health law… There are not many articles or litigation”, he emphasizes.

Other risks are also present on these platforms and the doctor of law himself recognizes this. “Where we have to be very careful with this type of activity is pimping.” Me Alexandre Bories specifies that the promotion and advertising of prostitution ads are prohibited. “It is forbidden to publish illicit content”, but this depends once again on the rules and general conditions of the platforms.

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