Don’t Play with Playboy

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Unbeknownst, rapper Azealia Banks was supposed to appear in the April 2015 edition of Playboy. That was until Mediatakeout.com LLC illegally stole and leaked nude photographs taken specifically for the 2015 edition to the media. Additionally, Media Takeout altered the photographs with a watermark: “MEDIATAKEOUT.COM.”  According to a Summons and Complaint that was filed by Playboy International Enterprises in Federal Court, Playboy is suing up to $150,000 for each copyright infringement, as well as $25,000 for each photo violation of the Digital Millennium Copyright Act (DMCA).

The DMCA was enacted in 1998, implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO). DMCA directly affects photographers. Section 1202(b) of the DMCA prohibits the removal of “copyright management information” in certain circumstances. It states in pertinent part:

No person shall, without the authority of the copyright owner or the law—(1) intentionally remove or alter any copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

Smartly, Playboy promptly registered the photographs with the U.S. Copyright Office in February 2015. Namely because all unpublished photos, regardless of the nationality of the photographer, are protected in the United States. Any photo that is protected by US copyright law can be registered, which includes works of foreign origin. When a photo is not registered with the US Copyright Office prior to an infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages.

Due to the fact that the photographs are registered, Playboy can recover attorney’s fees and statutory damages. Courts may award statutory damages up to $30,000 per work; the minimum damage award is reduced to $200 if the infringement is innocent; and the maximum increased to $150,000 if willful. Willful infringement usually means knowledge of copyright protection. It is questionable whether or not Mediatakeout.com LLC knew that the photographs were copyrighted or if this was just a publicity ploy for which they are willing handsomely pay.

The icing on the cake is that Playboy is also seeking an injunction to prevent future dissemination of their property from Mediatakeout.com. If the injunction is granted and this type of incident occurs again, we can be sure that Playboy will raise a punitive damages argument.

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