For the full transcript of this case, click HERE.

Sometime prior to 1998, Alyssa Milano's mother, Lin Milano, formed a company called "Cyber-Trackers" to shut down web sites that feature or display images of Alyssa Milano in violation of copyrights or without the proper authorizations. While it's uncertain how many sites they have actually closed down, there is no doubt that they have forced hundreds of web sites to remove unauthorized pictures of Alyssa Milano (and other Cyber-Tracker clients) from those sites. The company also pursues and sues anyone who creates and sells CD-ROMs with such pictures or in any other way illegally uses the copyrighted images of Cyber-Tracker clients.

From what I've been able to tell, it is primarily posed nude pictures of Alyssa Milano that prompt the lawsuits, and, apparently, Alyssa and/or Lin Milano own the copyrights to most of the nude pictures for which Alyssa has posed. Therefore, they have the legal right to sue anyone who uses those pictures without permission, and if it is on a pay web site or on a CD-ROM, they can sue for any monies earned from those sites or CD-ROMS - and they may also sue for a punitive award.

Copyright laws have been in effect for at least a hundred years, and very little of anything new is required to pursue such cases on the Internet. If you sell access to pictures without owning the copyrights for those pictures, you are probably in violation of copyright laws. You may also be in violation of copyrights if you give such pictures away for free while the copyright holder is trying to sell them, since you are diminishing the value of the copyright owner's product.

Generally speaking, however, copyright owners do not simply pounce on a web site and sue them for copyright violations. The copyright owner usually first warns the owners of the web site that they are in violation of your copyrights and asks them to cease and desist from using the images. This fair warning eliminates any excuse the web site owner may have that he wasn't aware that the pictures were copyrighted or that he was in violation of any laws. If the web site owner ignores such warnings, the next step for a claimant such as Cyber-Trackers is to file a law suit. (NOTE: Issuing repeated warnings gives the claimant a better case in court because they indicate that the defendant was warned that he was in violation of copyrights but chose to ignore the copyright laws.)

The best known Cyber-Trackers case involves a law suit they filed in April of 1998 against a 21-year-old man named John Lindgren who ignored repeated demands to remove pictures of Alyssa from his web site. Lindgren, who lives/lived in Minnesota, apparently decided on his own - without any legal advice - that he could simply ignore such requests. Then he was sued by Cyber-Trackers, and suddenly he was in the newspapers and on TV looking like a deer caught in a car's headlights as he told everyone, "I didn't think they were serious." So, seeing that they were "serious", he apparently removed the pictures of Alyssa Milano from his web site and - again without getting any legal advice - he figured that was the end of it. He apparently didn't even bother to read the law suit papers filed against him, because he ignored them, too!

The law suit required that he appear in court on December 23, 1998, to defend his misuse of the pictures. He did not appear on the required date. As a result, he lost the law suit by default and was ordered to pay $8,200 in legal fees and $230,00 in damages. Apparently, no one has seen nor heard of Mr. Lindgren since. I've heard nothing about what Cyber-Trackers did after this default judgement, but if John Lindgren also ignores subpoenas and attempts to collect the judgement, it could lead to the issuance of an arrest warrant.

Here is one news story (from the Reuters news service) about this judgement (Note that it also mentions three other pending cases):.
 

Thursday December 24 9:20 AM ET  Actress awarded $230,000 over nude Internet photos LOS ANGELES (Reuters) - A federal judge has awarded TV actress Alyssa Milano $230,000 because an Internet website posted nude photographs of her without her permission, court papers showed on Wednesday. U.S. District Judge Ronald Lew ordered the website owner, John Lindgren, to pay Milano the money. He also barred Lindgren from posting more nude photos of the former ``Who's the Boss'' star on his website, nudecelebrity.com, and ordered him to pay $8,200 for her attorney fees. Lindgren, who lives in Minnesota, did not respond to the lawsuit Milano filed against him and Lew issued a default judgment. Milano, who played actor Tony Danza's daughter for eight seasons on ``Who's the Boss,'' in April sued the owners of four websites, including Lindgren, that were carrying nude photos of her, according to her lawyer, Mitchell Kamarck. He said one owner had settled and another was negotiating a settlement. Milano planned to sue the fourth website soon, Kamarck said. ``One of the purposes ... is to educate web owners about intellectual property rights. Because of the publicity about this lawsuit, people are taking her name and images off their sites, so we are happy about that,'' Kamarck said. In addition to starring in ``Who's the Boss,'' Milano appeared in ``Melrose Place'' last season.

It's important to note that Alyssa Milano has the law on her side here. Of the three law suits Cyber-Trackers has filed, one was settled out of court, one is pending, and this latest was won by default. Lin Milano is batting 3 for 3, and the article says she's going to try for 4 for 4.

If you wish to know more about copyright laws, visit the web site of the Copyright Offices of the Library of Congress at this address: http://lcweb.loc.gov/copyright/

NOTE: I have not been able to find any mention of fakes in the lawsuits filed thus far by Cyber-Trackers.

Nude pictures of conservative talk-show host Dr. Laura Schlessinger appeared on an Internet web site on or around October 15, 1998. It was said that Dr. Laura at first claimed the pictures were fakes, but she then went to court to try to get the pictures removed from the Internet on the basis that she owned the copyrights and the pictures were being used in violation of her copyrights - an action that quickly dispelled any notion that the pictures were fakes.
 

Sunday October 25 4:37 PM EDT Radio moralist gets court to stop nude photos LOS ANGELES (Reuters) - Radio talk show host Laura Schlessinger, famed for berating listeners for their moral failings, won a court order Friday stopping an Internet site from showing nude photos of her. The dozen photos were allegedly taken by a now 80-year-old man who claims to have had an affair with Schlessinger in the mid-1970s when they were both married to other people. A spokesman for Schlessinger refused comment. However, her lawyers went to U.S. district court here Friday and, citing copyright violations, obtained a temporary restraining order preventing the photos from being shown on the Internet Entertainment Group's website. Her alleged former lover, former Los Angeles radio talk show host Bill Ballance, was served with a copy of the restraining order while he was a guest on a radio show talking about Schlessinger. Called ``Dr. Laura'' by her millions of faithful listeners, Schlessinger often chastises callers who seek advice about their love lives. She is strongly opposed to adultery and sex before marriage, and is the author of ``Ten Stupid Things Women Do To Mess Up Their Lives.'' A convert to orthodox Judaism, Schlessinger's often harsh tone with her listeners has become a matter of controversy among psychotherapists. Federal Court Judge Dean Pregerson set Nov. 2 as a hearing date. In a recent interview with Vanity Fair magazine, Schlessinger was quoted as saying she had made mistakes in her life that ``I regret and have shame for.'' Reuters/Variety

Because of the injunction filed by Dr. Laura's lawyers, the pictures were removed from the web site that had originally displayed them. But during the week or so that the pictures were on display, hundreds of people downloaded them and began distributing them around the Internet. Soon they could be found everywhere on the Net. As a result, when the hearing was held to determine if the temporary injunction should be made permanent (until the ownership of the copyrights could be fully determined), the judge decided that it was too late to stop distribution of the pictures. Since that time the pictures have been circulated everywhere and were even printed in the January 1999 issue of Hustler Magazine and mentioned in a "Biography" of Dr. Laura on the A&E cable channel.

On September 20, 1999, Sophia Loren filed lawsuits against 76 companies, charging them with misuse of her good name.  In these cases, fakes seem to be part of the lawsuit.
 

FROM WWW.MSNBC.COM: Sept. 21 —  Sophia Loren doesn’t want her good name — or her even better body — being exploited on the Internet. The actress, citing "distress, depression, shame, humiliation, embarrassment and shock," has slapped 76 Internet companies with a lawsuit, alleging that they’re using her name to lure Web surfers to pornographic sites. "THE DEFENDANTS ... have purported to display nude or semi-nude pictures of Sophia Loren, and some Defendants … have displayed photographs featuring Ms. Loren’s image without permission from Ms. Loren," according to the suit, filed in a U.S. district court in Indiana.  The actress, who turned 65 on Monday, is asking for a jury trial. Her lawsuit did not specify damage, but asked for — among other things — "damages and motion for permanent injunction."  Mark Roesler, Loren’s attorney and the head of CMG, the company that owns her image, says, "Inevitably, [the defendants] are using the key words such as ‘Sophia Loren’ and ‘nude’ in various search engines to attract traffic. Some have digitally manipulated images while others just use her name to attract people to their pornographic sites." Loren issued a statement from her home in Geneva: "I am horrified by the disgusting actions of the offending companies."

The most surprising aspect of this case is that she filed lawsuits against 76 companies all at once.  Normally, before attorneys file a lawsuit they first write letters telling the offender to cease and desist, advising the offender that he is violating laws and rights.  In nearly all cases, the offender will immediately remove the offending pictures from his web site rather than risk a lawsuit.  If he continues to do the offending act even after being warned two or more times, then it is clear that the offender has no regard for your rights and you can then get a judge to issue the injunction and you can file for damages.  There is no doubt that Sophia Loren has the legal right to file these lawsuits, but with all the publicity of the Alyssa Milano cases, it's difficult to understand how 76 separate companies would all ignore legal warnings from Sophia Loren's company.
    From some discussions with people who have been sued by Sophia, it appears that she just skipped the first step of asking people to cease and desist and went straight to filing lawsuits.  It's certainly one way to go if you really want to make your point - and have lots of money.  Now the lawyers are getting lots more money from Sophia by following up with the defendants, verifying compliance with demands to remove pictures, and then filing a withdrawal of the lawsuit if the defendant complies with all demands.  Lawyers probably charge 50 times as much for actually filing a lawsuit than they do for merely writing a warning letter.

The March, 2000, issue of Glamour Magazine contains this article about fakery, including some information about lawsuits filed by non-celebrities. The article seems to be calling for new legislation.
 
 

Playboy Magazine has been very aggessive in suing and shutting down web sites that display copyrighted Playboy images without authorization. In addition, Playboy has experimented with putting watermarks on its web-site images to prevent duplication, but that doesn't prevent people from scanning images directly out of their magazines.

According to the April 3, 1998, issue of The Wall Street Journal, Playboy Enterprises Incorporated won a $3.74 million judgment against Five Senses Productions, a California Web-site operator who put 7,475 photographs, many of nude women, on the Internet without authorization.

Reportedly, Playboy also sued a company for distributing CD-Roms of images that were taken from the Internet. The CD-ROM included thousands of pictures, but incidentally included about 60 copyrighted images owned by Playboy. The judge threw the book at the defendants, assessing $20K per image in statutory damages, plus the full statutory punitives, plus attorney fees. (This may be the same case reported by The Wall Street Journal.)

Interestingly, according to an April 28, 1998, article in The Los Angeles Times, "Sex sites may have some legal footing for what they do based on a doctrine known as 'fair use' that allows publication of copyrighted images - including nude pictures of celebrities - as long as the images are presented in the context of news and commentary. This is the same constitutional protection that enables magazines such as Playboy and Playgirl to devote entire issues to celebrity pictures they neither took nor paid for."

The Fair Use Clause says (in part) "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The entire section on "fair use" can be found at this URL: http://www.loc.gov/copyright/title17/
 
 

In the Penthouse case, Muad'Dib actually invaded the computers at Penthouse's web site and took material directly from them; he flagrantly posted them to newsgroups by the thousands, and he took requests from anyone wanting Penthouse pictures.  That's pushing things to the point of clearly violating Penthouse's copyrights by reducing the value of their photograpic library.
 
 

Around May 5, 1998, Nancy Kerrigan filed a law suit against the owner of a web site who displayed a pornographic fake of her and ignored her demands that it be removed.
 

BOSTON (AP) -- Pornographic material doctored to resemble figure skater Nancy Kerrigan was yanked from the Internet as a Massachusetts judge prepared an order barring its display. Kerrigan intends to sue World Wide Web site operator Marvista Computing Co. for invasion of privacy and defamation over the image the Los Angeles-based Internet company defended as ``obviously fake'' and meant for entertainment only. An Essex Superior Court Peter Brady issued a temporary restraining order Friday against Marvista.

Apparently the case was settled out of court.  News reports on ZDTV News and CNN said that 3 computers were confiscated, apparently as partial payment of a $10,000 settlement. Some sources indicate that Nancy Kerrigan originally sued for $15,000,000 but settled for the computers and whatever money the defendant had. The owner of the site said he thought the fake was an "obvious" fake and that no one would take it seriously. He was wrong.  Here's the final outcome:
 

Kerrigan settles lawsuit over fake pornographic pictures Copyright © 1998 Nando.net Copyright © 1998 The Associated Press  BOSTON (September 17, 1998 11:25 a.m. EDT http://www.nandotimes.com) -- Ice skater Nancy Kerrigan has settled a defamation lawsuit against an Internet company that displayed computer-generated pornographic images of the figure skater online. Under the settlement reached Wednesday, Marvista Computing Co., also called SexPicNet, will pay Kerrigan an undisclosed sum of more than $10,000, said Kerrigan lawyer Victor Polk. Polk said Marvista grafted an image of Kerrigan's head onto another body. Kerrigan, the 1994 silver medalist in figure skating, claimed in a May 1 lawsuit that the images defamed her and caused her emotional distress. "I feel good that we were able to prevail," said Jerry Solomon, Kerrigan's agent-husband. "It sent a message to people in that business that you just can't irresponsibly do whatever you want to do." Under the agreement, Los Angeles-based Marvista will also relinquish the three computers used to produce the images and will not be permitted to print any more images of Kerrigan. Efforts to reach Marvista for comment Wednesday were unsuccessful. In May, company officials said the Kerrigan image was an "obvious fake" and for entertainment purposes only.

Around July 15, 1999, Nancy Kerrigan apparently filed another lawsuit that could be for "defamation of character" or possibly for the illegal use of her copyrighted name:
 

Thursday July 15, 1999   7:15 PM ET  Nancy Kerrigan Sues Internet Site BOSTON (AP) - Figure skater Nancy Kerrigan filed a lawsuit Thursday against a company she says is using her name to sell sexually explicit pictures over the Internet. In a suit filed in Essex Superior Court, Kerrigan accuses FSX Network Communications Corp., of Staten Island, N.Y., of inserting her name 32 times into a 22-line text page in an effort to get search engines to point to the site whenever a computer user requests information on Kerrigan.  The text page links to three pages where sexually explicit pictures are for sale. The suit also names Bill Tay of Staten Island as a principal of FSX and Linda Zoker as the owner of the company's telephone lines. Four other companies believed to be associated with the sites are named as well. None of the parties named in the suit could be located for comment. Kerrigan's lawyer, Victor Polk, believed there might only be one person behind the Web sites. ``But with all of these pornographers, it is very hard to follow the trail,'' he said. The suit seeks to have Kerrigan's name permanently removed from the site, as well as unspecified damages. The names Audrey Hepburn, Brooke Shields, Connie Chung and Jane Seymour are used in a fashion similar to Kerrigan's, and Polk believes the names of as many as 500 other well-known women are also being used to lure web surfers to the FSX site. In September, Kerrigan settled a lawsuit against a California company she accused of displaying false sexually explicit pictures of her on the Internet. And Polk said a lawsuit is pending against a company that had been selling such pictures on CD-ROM. Kerrigan, 29, won a silver medal at the Lillehammer Olympic Games in 1994.

The Scandanavian rock band "Aqua" sued a web site owner in Canada for displaying fake nude pictures of their Norwegian lead singer Lene Norstom. The details are hard to come by since most reports are in Danish, Dutch and Norwegian, but reportedly the owner of the web site removed the pictures and disappeared.

Florence Henderson has apparently gotten fed up with people making a buck by degrading her squeaky clean image. She has sued a maker of T-shirts for defamation of character:
 

Tuesday February 23, 1999 - 3:54 AM ET  Actress Henderson Sues To Stop 'Porn Queen' Shirts By Dan Whitcomb LOS ANGELES (Reuters) - Actress Florence Henderson, who starred as the wholesome mom on TV's ``The Brady Bunch,'' is suing a company that sells T-shirts using her picture with the words ``Porn Queen'' underneath, saying the label was not true and not nice. Henderson, who played the squeaky-clean Carol Brady to a family of three boys and three girls in the hit 1970s series, said in court papers filed in Los Angeles Superior Court that she was ``exposed to contempt and ridicule'' by the shirts. A spokesman for Serial Killer Inc., the company that markets shirts, hats, stickers that poke fun at celebrities, declined comment on the ``Porn Queen'' design. But the firm's website defined Serial Killer as ``on the cutting edge of counter-cultural streetwear'' with the goal of provoking people who are not young and hip. ``Serial Killer is a clothing company that doesn't give a f--- what your parents think,'' the website says. ``Our product is an expression, a statement of reality ... Serial Killer products are funny and make old people upset.'' The company says it caters to ``snowboarders, skaters, punkers, meth heads, tweeks, drunks, surfers, losers, bikers, partiers, serial killers, criminals, stoners, cute girls, ugly guys, nice people, mean people, cheerleaders, porn queens, dike jocks, perverts, principals, funny little dogs, bad Oriental drivers and anyone else who has a warped sense of style.'' In addition to the Henderson T-shirt -- which features a picture of the actress above the words ``Porn Queen'' in script -- the company offers more than 50 others, many of which consist of a celebrity's picture above a potentially insulting slogan. Audrey Hepburn is labeled ``Hooker,'' Farrah Fawcett ''Slut,'' and child actor Susan Olsen, who played Henderson's young daughter Cindy Brady on ``The Brady Bunch,'' is pictured above the words: ``Jail Bait.'' In her 20-page lawsuit filed Friday, Henderson claims the T-shirt design, which is also offered on sweat shirts, tank tops and stickers, ``contain (her) photograph with the highly offensive and false words.'' The actress, who in recent years acted as a spokeswoman for Wesson Oil, has also sued a small northern California store called Gravestones for an ad that spoofed those commercials. The gift store ran Henderson's photo in an ad next to the words: ``When I'm not soaked in Wesson Oil from head to toe, I'm shopping at Gravestones.'' A woman answering the phone at Gravestones said the store would have no comment on the lawsuit. Henderson said in the suit that she ``suffered loss of reputation and standing,'' emotional distress and an invasion of her privacy. She seeks unspecified damages and injunctions against both defendants of use of the ad and sales of the product.

The company that was selling the offending T-shirts on line has removed the Florence Henderson T-shirts from its web site, but that will not alter her defamation of character case very much. You do not have to constantly repeat an insult in order to make it grounds for a legal case.

After hearing for nearly a century, Milton Berle probably finally got sick and tired of people wondering if he was gay or not just because he did a lot of Burlesque routines in drag:
 

Saturday July 31, 1998  3:22 AM ET Milton Berle Sues Over Ad LOS ANGELES (AP) - Milton Berle has sued a real estate company and a gay publication over an advertisement that depicts him in drag and implies the 91-year-old entertainer is homosexual, Berle's attorney said. The Century 21 advertisement features an old photo of Berle wearing a dress while doing a parody of singer Carmen Miranda in a television comedy sketch, Berle's attorney, David Albert Pierce, said Friday. The advertisement appeared in the spring-summer 1998 edition of Lambda's Out!, a resource guide for the gay community. The caption of the ad read: ``Our team of friendly professionals know how to cater to royalty ... after all, every queen deserves a castle.'' ``We are deeply concerned that a generation of Americans unfamiliar with Berle's classic schtick are seeing Berle depicted as a homosexual within the pages of this gay magazine,'' Pierce said. The comedian is seeking $6 million in damages from Century 21 Real Estate Corp. and Lambda Publications Inc. for defamation of character and unauthorized use of his image, according to the lawsuit filed June 4 in federal court. Phone calls to Lambda Publications and Century 21 were not returned.

Dustin Hoffman sued Los Angeles Magazine for misappropriation of his image when the magazine printed a fake picture of Dustin Hoffman in a dress much like what he wore in the movie "Tootsie". The court not only found in favor of Dustin Hoffman but also levied punitive damages against Los Angeles magazine, awarding him a total of $3,000,000. Technically, this case involves "fakes" and the improper use of a "fake" but that use may have very limited legal implications.
 

Sunday January 31, 1999  1:19 AM ET  Dustin Hoffman Gets $1.5 Million More In Lawsuit By Arthur Spiegelman LOS ANGELES (Reuters) - A federal judge Thursday ordered a magazine that published a computer-concocted photo of Dustin Hoffman in a dress and high heels to pay the actor a total of $3 million for violating his right to his own image. U.S. District Court Judge Dickran Tevrizian Jr. ordered Los Angeles Magazine to pay Hoffman $1.5 million in punitive damages in addition to the $1.5 million in compensatory damages he levied on the magazine last week when he found it guilty of using the actor's face and image without permission. The popular lifestyle magazine, owned by Disney unit ABC Inc., also must pay Hoffman's legal costs, the judge said. A spokesman for ABC said the decision would be appealed adding, ``We think the punitive damage award has no basis in fact or law.'' But Hoffman, who won critical praise for his portrayal of a cross-dressing actor in the 1982 film ``Tootsie,'' claimed victory. ``I felt electronically cloned in a way.... You try to practice your craft and you're not selling yourself ...and to see it happen against your will was really infuriating to me,'' he told reporters after the decision. What outraged Hoffman was being included in a photo layout called ``Grand Illusions'' in 1997 that also used other stars, including Cary Grant, Elvis Presley and Marlene Dietrich, to promote the latest spring fashions. All the celebrities were ``dressed'' through computer trickery in clothes they never wore. Hoffman was pictured in a butter-colored silk evening gown by designer Richard Tyler and Ralph Lauren heels with the prices listed. Lawyers for Los Angeles Magazine argued that the layout was protected under freedom of press provisions in the U.S. Constitution and that the magazine use of Hoffman's image was fair and reasonable -- in fact something often done in fashion magazines. In his ruling, the judge disagreed, calling Hoffman ``one of our country's living treasures'' who had a right to his image. Judge Tevrizian also said the stars featured in the pictorial were ``robbed of their dignity'' and ``violated by technology.'' Some civil liberties experts wondered whether the ruling had gone too far and whether a higher court would overturn it. Hoffman's lawyer Charles Shepard said he hoped the decision stood and served as a warning to others not to commercially exploit celebrities. ``The court confirmed today that the conduct of Los Angeles Magazine in manipulating the photograph of Mr Hoffman and misappropriating Mr Hoffman's name and likeness was malicious and outrageous and was done in conscious disregard of Mr Hoffman's rights,'' Shepard said.

Exactly how this case applies to fakes on the Internet has yet to be determined. In this situation Los Angeles Magazine basically used Dustin Hoffman as a model without his permission and without paying him for that service - and they did so by digital fakery. The fakery could be considered incidental to the case - except that it was the technique used to get Dustin Hoffman to "pose" for the magazine. In other words, it isn't the technique that was on trial, but the way the images were used. Los Angeles Magazine was using him to sell magazines - without his approval or agreement.

It seems to me, if someone took a picture of Madonna holding her baby and digitally replaced the baby with some product and used the fake picture to sell that product, that would be equally illegal by this ruling - and that seems perfectly reasonable.

But it's a murky area.  The Court of Appeals overthrew Dustin Hoffman's victory:
 

Actor Dustin Hoffman loses damages award on appeal  by Bob Egelko, Chronicle Staff Writer     Saturday, July 7, 2001  Dustin Hoffman, a winner with audiences and critics in 1982 for his portrayal of a cross-dressing actor in "Tootsie," was a $3 million loser yesterday in a federal appeals court, which said a magazine's computer-enhanced takeoff on his movie character was constitutionally protected.  The three-judge U.S. Court of Appeals panel in San Francisco overturned Hoffman's damages award against Los Angeles Magazine, which ran an article titled "Grand Illusion" in 1997 showing movie stills that had been doctored to outfit the stars in the latest spring fashions.  One picture, from "Tootsie," showed Hoffman's head, wearing a woman's wig, atop the body of a male model posed like the film character and wearing an evening dress. The caption read: "Dustin Hoffman isn't a drag in a butter- colored silk gown  by Richard Tyler and Ralph Lauren heels."  Hoffman, who hadn't been consulted, claimed a violation of his right under California law to control commercial use of his name and likeness. The same "right of publicity" has been used by singers Bette Midler and Tom Waits to stop ads that simulated their voices.  A federal judge awarded Hoffman $3 million in a nonjury trial, half of it in punitive damages, plus $269,000 in attorneys' fees. But the appeals court said the picture and article were protected by the First Amendment because they were part of the    magazine's regular content, rather than an advertisement.  The article was not a sales pitch but "a combination of fashion photography, humor, and visual and verbal editorial comment on classic films and famous actors," Judge Robert Boochever said. He also said the title and text made it clear that the pictures had been altered.  Hoffman's lawyer, Charles Shephard, said he will ask the full court for a rehearing. He said the article was a promotion for fashion designers -- many of whom had ads elsewhere in the issue -- and created the false impression that Hoffman endorsed the products shown in the photo.  The ruling "will permit the media to digitally alter photos to make it appear people were doing things they didn't do," said Mark S. Lee, lawyer for Elvis Presley Productions, which has sued over another photo in the article, a scene from "Jailhouse Rock."  Floyd Abrams, lawyer for a group of news organizations including the Hearst Corp., owner of The Chronicle, said the court rightly drew a distinction between "commercial speech," which is subject to regulation, and articles about commercial topics, which enjoy full constitutional protection.  "It's not an ad just because there are pictures of clothes for sale," he said. "Speech is not commercial simply because it shows matters of commercial interest."    Dustin Hoffman Court Win Over Magazine Reversed By Dan Whitcomb            Friday July 6 4:40 PM ET  LOS ANGELES (Reuters) - A federal appeals panel on Friday overturned actor Dustin Hoffman's 1999 court victory against a magazine that printed an altered image of him in a dress and high heels, ruling that the publishers were protected by the free  speech provisions of the U.S. Constitution. Hoffman -- who played a cross-dresser in the film ``Tootsie'' -- won a $3 million judgement from a federal judge, who found after a week-long trial that Los Angeles Magazine had trampled the Oscar-winning actor's right to his own image and left him ''violated by technology.'' U.S. District Judge Dickran Tevrizian, who called Hoffman ''one of our country's living treasures,'' awarded him $1.5 million in compensatory damages, the same amount in punitive damages and nearly $270,000 in attorneys fees. But a three-judge panel of the U.S. 9th Circuit Court of Appeals reversed Tevrizian's judgement on Friday and said the magazine was protected by the First Amendment of the U.S. Constitution. ``We conclude that Los Angeles Magazine is entitled to the full First Amendment protections awarded noncommercial speech,'' the judges said in a written ruling. The magazine, which was owned at the time by Walt Disney Co. unit ABC, used Hoffman's image along with other stars such as Cary Grant, John Travolta and Marlene Dietrich, to promote a series on spring fashion in a 1997 photo layout. The article featured a computer-generated image of Hoffman taken from ``Tootsie'' that appeared to show him wearing a butter-colored silk dress by designer Richard Tyler and high heels by Ralph Lauren. Hoffman, a top film draw since the 1967 classic ``The Graduate'' claimed copyright infringement, violation of his right to publicity and unauthorized use of his likeness. He testified at trial that he had scrupulously avoided appearing in advertisements and felt exploited by the article, which he saw as an effort to sell the clothes. But the appeals court disagreed. ``We conclude that Hoffman did not show by clear and convincing evidence .. that (the magazine) acted with actual malice in publishing the altered 'Tootsie' photograph,'' the judges wrote. A spokeswoman for ABC, which has since sold the magazine, said entertainment company was ``gratified'' by the ruling. Hoffman's attorney on the case and his publicist could not immediately be reached for comment.  Los Angeles Magazine is now owned by Indianapolis-based Emmis Communications Corp..

Tiger Woods is suing artists who paint and sell his picture without authorization. While the U.S. Supreme court has ruled against a TV station that took and used unauthorized TV footage of an entire performance, it seems very debateable whether Tiger Woods has a case regarding paintings that could stand up all the way through the Supreme Court. It seems to me that painting and selling unauthorized pictures of a celebrity is little different from taking and selling an unauthorized photograph of a celebrity. And the paparazzi take unauthorized photographs of celebrities and sell them for thousands of dollars every day. (And writers write and sell unauthorized biographies.) But until someone with sufficient money to fight Tiger Woods on this can take his or her case all the way to the Supreme Court, unauthorized paintings of celebrities appear to be subject to litigation.
 

Lawsuit Pits Artists' Rights vs. Athletes. By MARCIA CHAMBERS (from The New York Times, Feb. 16, 1999) Nearly two years ago Rick Rush, a painter of sporting scenes, went to the Masters at Augusta National Golf Club to paint the new sensation, Tiger Woods, who wound up with a record-setting victory. The 52-year-old artist from Tuscaloosa, Ala., who has been painting famous sports figures and events for 23 years, produced a series of numbered prints that were signed by him and called "The Masters of Augusta." The series features Woods in the foreground and other golf greats in the shadows. A limited edition of 250 serigraphs selling for $700 each was issued last April, along with 5,000 smaller lithographs selling for $15 each.  Rush said that he hoped the Woods painting would join many of his others of famous athletes -- like those of Michael Jordan, Magic Johnson and Jack Nicklaus -- as he works on "painting America through sports."  But the Woods painting has ignited a bitter and costly legal battle that pits an artist's freedom of expression against a subject's property rights. The case began last June when the ETW Corporation filed a trademark and right-of-publicity lawsuit against Rush's company, Jireh Publishing, in Federal court in Cleveland. ETW's president is Tiger Woods's father, Earl, and its address in Cleveland is the same as that of International Management Group, the high-powered agency that represents Tiger Woods.  In decades past, athletes and movie stars tended to be happy for whatever publicity they received. Now many want to guide and control that publicity for their own profit, and the law has helped them do so. Some sports figures register their names as a trademark (Woods has) and invoke right-of-publicity laws to assure that others will not benefit from their fame.  The result is a new legal climate that is changing the environment in which some American painters work. The issue is: May an artist at a public event freely create paintings of great athletes in action and sell them, or must he pay for the right to use an athlete's image?  In the 1990's many entertainment and sports stars, guided by agents and law firms, have demanded control of their names and images. They or their agents maintain that in an age of rampant commercialism they must hold onto the hottest property they know: themselves.  ETW was created to control the marketing of Tiger Woods's image. It is represented by I.M.G.'s top outside counsel, Jones, Day, Reavis & Pogue, one of the nation's largest law firms. Since 1997, ETW has sued five other companies that it claims have interfered with Tiger Woods's right to publicity. Jireh, in contrast, is represented by Dennis J. Niermann, a solo practitioner who describes the litigation in his court papers as "predatory." Tiger Woods, according to court papers, was unaware of the lawsuit when it was filed.  Don Rush, Rick's brother and the president of Jireh, said in an interview last week that the litigation was draining the company's resources by plunging it into the daily demands of a major lawsuit. The case took an ominous turn for Jireh last week when Judge Patricia Ann Gaughan of the United States District Court for the Northern District of Ohio ordered Jireh to turn over the names of the 879 distributors and customers who bought the Woods prints. Timothy P. Fraelich, an associate with Jones, Day, has told the judge he plans to subpoena those clients. Fraelich declined to comment on the case.  Fraelich is seeking a permanent injunction to prevent Jireh from marketing Woods's likeness or image. He has also requested that the remaining Masters prints be destroyed, that ETW get a share of Jireh's profits from previous sales of the Woods painting and that the court award triple damages, attorney's fees and other costs, which could include the cost of deposing 879 clients located around the country.  James D. A. Boyle, a visiting professor at Yale Law School who teaches on intellectual property, said Federal and state laws were making it tough on artists.  "There has been an increasing tendency," Boyle said, "for the law to cover different aspects of a celebrity's life: their name, their likeness, their images both through trademark law and through rights of publicity. At times this has presented the danger that the public domain will be increasingly privatized."  LeRoy Neiman, perhaps the most recognizable name in sports art, began drawing athletes more than three decades ago, long before these changes in case law began to appear. "There were no artists out there," he said. "There was no market. Nobody was selling paintings and prints of Wilt Chamberlain, and in the early Ali days nobody was drawing him. It was a different time."  That began to change in 1977 after a United States Supreme Court ruling in Zacchini v. Scripps-Howard Broadcasting Company. The court said that by videotaping and broadcasting without permission the plaintiff's entire 15-second human cannonball act, a television station had effectively exploited the plaintiff's right to control his own publicity. States soon adopted right-of-publicity statutes, and these, along with Federal court opinions and trademark law, have expanded the rights of stars and athletes to protect their images in the marketplace.  Douglas Mirell, an entertainment, media and intellectual property lawyer at Loeb & Loeb in Los Angeles, said, "I think that there are enormous constitutional issues that are raised by these kinds of statutes, and I think we are just beginning to see how pernicious these laws actually can be." Painters, he said, now must be "very careful because there is the assertion that what you are doing is trading on fame and fortune which would otherwise be exploitable by the celebrity himself or herself."  Mirell represented the private Franklin Mint, of Philadelphia, after ETW sued when a commemorative coin was issued in its "eyewitness medal series" in connection with Woods's Masters victory.  ETW, the first to sue the Mint over the series, raised trademark and right-of-publicity claims. The case was settled.  Don Rush said Jireh's case was a fight on behalf of all artists who want to paint public figures at public events. "It is conceivable that we ought to abandon the fight and cut up the paintings," he said. "And we may have to do that to save the company. But we really don't want to settle."  Rick Rush said: "I believe these events are in the public domain. I want to capture the sporting life style." He said that to eliminate the sports star from his paintings "would sterilize and dilute the image" of what he was creating.  Not all artists agree with Rush's view. Neiman said that star athletes should share in any profits the artist earns, even if it was a small share.  Neiman, who recently commanded $7,500 for a signed, sealed and framed limited-edition serigraph of Mark McGwire, says he obtains permission from his subjects. "In the one of Mark McGwire hitting a home run," he said, "we had the official approval of the team, the league, the player. Each gets a small percentage. I believe in that. Why should an artist just looking for a hot market do something without having an arrangement? The player is entitled to a cut."  Or is he? Under all circumstances? That's what the court must decide -- unless escalating legal costs force Jireh to settle.

In this case, the U.S. Court of Appeals for the Ninth Court on March 14, 2000, reversed a decision by a lower court that Mendler's copyrights had not been infringed upon and found in favor of the plaintiff - declaring that Winterland Productions, Ltd. had indeed infringed upon Mendler's copyrights.  Winterland had manipulated photographs taken by Mendler to create T-shirts with designs that were no longer photographs but obviously based upon the original photographs.  The lower court said that when Mendler signed a contract with Winterland giving Winterland permission to use Mendler's photographs in illustrations, that contract was also authorization for Winterland to turn those photographs into drawings - since the drawings were obviously just "manipulated" versions of the photographs. The U.S. Court of Appeals for the Ninth Court disagreed and said the contract did not specifically give authorization to use the photographs to create drawings, and therefore Mendler's copyrights had been infringed upon.  The ruling seems to declare that using a photograph to create a drawing infringes upon the copyrights of the person who took the photograph unless the photographer gives specific permission for that to be done.  That could definitely mean that using a photograph without permission to create a "fake" photograph to be used for the profit of the faker is a violation of the photographer's copyrights.  For the complete court ruling, click HERE.

The case includes an analysis of what makes a photograph a photograph, and the Appeals Court also discussed fake photographs in a footnote and referred to The Fake Detective's work "for expert dissection of such images", providing a link to the original Fake Detective site.  That's probably a first.
 
 

While this might not seem like a case involving fakes, it appears to have some "fakery" involved.  The first version I saw of this topless shot was downloaded on April 29, 1999, as a scan from an Italian magazine.  The Italian text in the accompanying article implied that the topless picture was taken in Mexico as part of a set of pictures that included other shots of Jennifer Aniston in a bathing suit.  It now appears that the paparazzi photographer may have tried to sell the topless picture that way, knowing he had illegally obtained the picture.  If the picture was taken on a beach in Mexico, it's fair play and doesn't involve "invasion of privacy".  But the topless shot is actually from a different time and place - the backyard of her own home - and it does therefore involve "invasion of privacy".  The paparazzi photographer is then the "thief" and any magazine that publishes the photos is the equivalent of a "fence" buying and distributing stolen property.  At least that's the way I see it.

It's fairly common for fakers to include a fake in with a batch of real pictures in order to trick people into thinking they are all real.  It isn't surprising that a paparazzi photographer would resort to the same thing with a picture obtained illegally.

On August 29, 2000, The Fake Detective received this threat from Cybertracker:
 

You sir are breaking the law!  Remove all cyberTracker clients and contact the search engines. Kathy Ireland Helen Shaver Lisa Marie Presley Jenna Elfman Alyssa Milano Tyne Daly Catherine Zeta Jones Holly Marie Combs Kathryne Dora Brown Kelly Le Brock Marilyn McCoo Portia de Rossi Sharon Lawrence Tamara Mello Tori Spelling Book 2 of The Fake Detective's Case Files ...CASE #103 - This fake of Kathy Ireland just appeared, but it's so... ...photo retouching - similar to Kathy Ireland Case #6. The retouched... http://www.fake-detective.com/book-02/casefl-2.htm Dear Sir or Madam: Kathy Ireland has hired Cybertrackers to monitor the use of her name, likeness and image on the World Wide Web.  In that regard, we have determined that you are utilizing Kathy Ireland's name, likeness and image and that such use may be violating Kathy Ireland's publicity or privacy rights or certain copyrights owned or licensed by Kathy Ireland's. YOU ARE NOT AUTHORIZED TO COMMERCIALLY EXPLOIT Kathy Ireland's NAME, LIKENESS OR IMAGE.  Such impermissible exploitation is a violation of Kathy Ireland's right of publicity under both common law and California Civil Code section 3344. See, "Empowering Celebrities in Cyberspace" at http://www.rmslaw.com/articles/art6.htm.  Pursuant to California Civil Code section 3344, Kathy Ireland will recover her attorney's fee in any resulting litigation as well as actual damages.  As you may know, such lawsuits routinely result in large judgments against websites.  See "Actress Given Six Figure Award Over Nude Photographs" at http://www.msnbc.com/news/226315.asp. Kathy Ireland hereby demands that you immediately cease all uses of her name, likeness or image on your website and that you immediately contact all search engines or portals to which you website is registered using Kathy Ireland's name.  Unless you comply with this demand, you will be turned over to Cybertracker's attorney who has a proven track record prosecuting these matters throughout the world.  See http://www.rmslaw.com/attorneys/kamarck.htm.   Be governed accordingly. Sincerely; Lin Milano Cybertrackers http://cyber-tracker.com/

We immediately complied, even though we felt the demand was unreasonable and unjustified.  The demand was apparently prompted by the fact that a subset of the Yahoo! search engine recently began including The Fake Detective site in their indexes.  While the index at Yahoo! is manually created, the subset (google.com) is apparently automatic and just scans every html page it can find on the Net to create its indexes.  While it was easy enough to remove Kathy Ireland from the web site, we don't even know if it's possible to remove her from the google.com indexes.

However, we got around the problem (we hope) by changing the name of the offending html page so that the existing links at google.com will not find the page.  This is probably something we should do from time to time anyway, since it cuts our operating costs by about 30 percent.

So, we do not deliberately advertise this site on any search engines, but we were accused of doing so.  We're certain we are within "fair use" guidelines regarding copyright infringement.  And we cannot see how Kathy Ireland was harmed in any way by showing that topless pictures of her were fakes.  But we're not fans of Kathy's anyway, so why argue the matter?

NOTE: Someone who read this page advised us of the robot.txt method to keep certain search engines from accessing your web pages.  We've since implimented that method, and it definitely seems to work.

Because Kathy Ireland's name is used on this html page, it's possible that this page will now show up as Cybertracker continues to search the Net for people using her name.  If they threaten us over this page, we'll let you know.

THE STRAITS TIMES - SATURDAY, MAY 20, 2000 "It's disgraceful. They simply want to victimize me." SITI NURHALIZA - FAKE NUDE PICTURES OF SINGER PUT ON THE NET... The doctored pictures of Siti Nurhaliza show her in steamy poses and are being circulated via e-mail. She is the latest victim of porn peddlers. KUALA LUMPUR - Malaysia's hottest singer, Siti Nurhaliza, has become the latest victim of Internet pornographic peddlers. Seven superimposed nude pictures of the singer with a squeaky clean image were shown in steamy poses and were circulated through e-mails. "I feel humiliated and sad", the Malay Mail quoted the singer as saying.  "It wasn't me. I certainly did not pose for these pictures. This is the work of unscrupulous people who know how to doctor pictures."  "It's disgraceful. They simply want to victimize me." Siti Nurhaliza, 21, said the e-mail was a popular and advanced medium of communication and should be used positively.  She knew of other artists who had similar experiences of having doctored nude pictures of them circulated on the Internet.  She believed the porn peddlers were latching onto her popularity to gain commercial value, particularly to link the pictures to their web sites.  "Hopefully, the authorities can detect and take action against these irresponsible people."  She hoped that the culprits would be caught and penalized heavily. It is not known how many people recieved Siti's "nude" pictures via e-mail. An Internet expert told the Malay Mail that it was almost impossible for the Internet service provider to filter the pictures and stop anyone from sending the nude pictures through e-mails.  "There is nothing much we can do if people want to circulate the pictures to their friends. We cannot stop them from doing so as e-mails are private."  He said such indecent exposure is not only confined to Malaysian artists. Many Hollywood stars have also been victimized in more cruel ways and they can do nothing to stop it. "This is basically a question of morals and ethics. People who do this have none," he said. In March last year, Edry Abdul Halim of singing group KRU said that a total of 11 pictures of him and singer Linda Rafar in sexually-explicit positions had been circulated on the Internet.  He said the pictures were fake and the work of malicious parties out to sabotage the pop group.

We thank "Blazio" for supplying the article below.

The Daily Yomiuri (Japan) Saturday, March 10, 2001 Industry, police move to control obscene collage Internet sites by Yuichi Shibata (Yomiuri Shimbun Staff Writer) The number of aikora sites on the Internet is rapidly increasing. When dreaming about becoming famous celebrities, girls do not consider the image exploitation risks that inevitably come with fame. Altered images of celebrities are known in Japan as "aikora" (aidoru koraju or idol collage).  Improved image software and new technology has simplified the production of image collages, and the number of aikora sites on the Internet has increased over the past four years. As a result, the Japan Association of Music Enterprises (JAME) and the Metropolitan Police Department’s "cyber police" have moved to bring criminal charges against Web site operators who maliciously alter celebrity images by replacing their photographs with nude or obscene photographs. According to the private research firm, Wise Works Project of Taito Ward, Tokyo, there are more than 5,000 Web sites featuring aikora images of Japanese celebrities worldwide. The aikora sites range in size from several images to more than 1,000 images. The most vulnerable are popular young girls and celebrities that sell "pure images".  Such images are often altered to reveal nude and obscene pictures. When girls become popular at very young ages, the aikora images begin to resemble child pornography. Some sites can be viewed for free, but  many have recently started to charge via Dial Q2 telephone lines. JAME has sent e-mail messages to aikora sites warning them that they are exploiting the images of the 89 celebrity management companies belonging to the association. However, the operators are devising increasingly complicated schemes to avoid detection.  In some cases, the entrance icon to an aikora site is disguised as an ordinary advertising banner or only appears when the cursor is directed to a certain area of a screen. Even if aikora sites on the Internet are closed, they often quickly return under different names and site addresses.  There are currently no effective control measures to prevent the obscene sites, but JAME is now examining the possibility that the sites are violating copyright laws. Aikora site operators often use photographs of celebrities cut from publications without paying royalties, and the association and cyber police – the MPD’s section specializing in cyber crimes – have determined that it is possible to bring criminal charges against the aikora-site operators for copyright violation. JAME successfully filed a criminal complaint against an aikora magazine in late January, and is currently preparing a list of malicious Web sites for police to investigate. The JAME move indicates that the entertainment industry is leaning toward gaining tighter control on celebrity portrait rights in this age of easy image manipulation. It is estimated that popular aikora sites, which carry numerous advertisements, bring several millions of yen per month into the pockets of the site operators.  Celebrity management companies consider the aikora sites to be illegal businesses that steal the images of their celebrities and damage their marketablity. However, tracking down the site operators is proving difficult.  They leave behind little evidence and once they sense a risk of detection, they withdraw the data immediately. In one case, an aikora site operator moved its content from a U.S. Internet service provider to a site originating in South America. "We realize that we risk turning this into a chasing game, but we just cannot continue to allow the exploitation of our treasury right," JAME General Director Toru Ogi said.  "We must keep pursuing the illegal sites".

Japanese copyright law has no "fair use" provisions, and privacy laws regarding photographs of persons are much tighter than in the USA.

The following is a press release from Perfect 10 magazine:

Thursday April 25, 10:00 am Eastern Time Press Release SOURCE: Perfect 10 Magazine Perfect 10 Magazine Wins Landmark Court Ruling BEVERLY HILLS, Calif., April 25 /PRNewswire/ -- A preliminary injunction granted to Perfect 10 Magazine by United States District Judge Lourdes Baird in Los Angeles is likely to substantially reduce the number of porn sites on the Internet along with the theft of celebrity images and movie clips. In a landmark legal decision, Judge Baird issued an injunction against Cybernet Ventures and related websites, preventing their ``Adult Check'' network of over 300,000 affiliated websites from displaying Perfect 10's photos or photos of ``Complaining Celebrities.'' In its ruling, the Court stated that Perfect 10 had a strong likelihood of establishing that Cybernet Ventures, which advertises itself as an age verification service (AVS), has vicarious and contributory liability for the conduct of its 300,000 affiliated websites. According to Perfect 10 Magazine owner Dr. Norman Zadeh, over the last five years, thousands of websites have been created by illegally scanning images from Perfect 10, Playboy, and virtually every other magazine, and by stealing nude scenes from movies. Among these websites are huge celebrity sites that include thousands of unauthorized pictures of celebrities such as Jennifer Love Hewitt and Britney Spears, as well as virtually every other film or recording star and top fashion model. These photographs not only include unauthorized images scanned from magazines and films, but also include altered or fake images of the celebrities that appear to show them in the nude or engaged in sexual activities. The recent ruling of Judge Baird is likely to put an end to these practices on the Internet. ``A google search for sites which use the words 'Jennifer Love Hewitt' and 'Nude' turns up 37,300 sites,'' says Zadeh. ``But she's never done any nudes. Probably 98% of high quality porn sites consist of stolen material, and most of the billing for those sites is done by six major companies,'' says Zadeh. ``We intend to shut down the vast majority of the thousands of 'celebrity porn sites' by stopping the relatively few companies that bill for them and profit from their illegal activities.  We pay for our content and can't fairly compete against entities which steal theirs.'' According to Ronald Johnston of Arnold & Porter, the lead attorney for Perfect 10 Magazine and its website, perfect10.com, the significance of the ruling has to do with the unfair competition cause of action, which was not present in the Napster decision. ``By allowing a web operator to enjoin other web operators from misusing celebrity images or misappropriating content, the judge's ruling will greatly help in cleaning up the Internet.'' A copy of the ruling is posted on Perfect 10 Magazine's website, perfect10.com. For further information contact Dr. Norm Zadeh at 310-205-9988. SOURCE: Perfect 10 Magazine

This is the court order issued against Adult Check/Cybernet Ventures:

Order #1. Defendants shall not do any of the following on or in connection with any websites individually operated by them: (a) invoke or display the name, likeness or identity of any of the "Identified Celebrities and Models" (as defined in paragraph below); or (b) display, copy or distribute any "Perfect 10 Works" as defined in paragraph 11 below) or images substantially similar thereto (collectively, the "Prohibited Content"). Our Position:  This provision is addressed to Adult Check as well as the other named defendants.  Although we never directly displayed any of the Perfect 10 images or the other Identified Celebrities and Models, it is alleged in the Complaint that the other defendants did.  This affirmatively prohibits those sites from displaying or invoking the names or images of these people now and in the future. ##### Order # 2. Cybernet shall not include in its search engine or any database any of the Prohibited Content and Cybernet shall not produce any search results of any kind in which the names or identities of the Identified Celebrities and Models are invoked in search requests or queries on its search engine. Our Position:  Adult Check has had a banned words and banned names policy in effect for over 2 years that was specifically designed to avoid this unfortunate situation.  Thus, we believe our long-term commitment to this problem has been noted.  Upon receiving notice from Perfect 10, we immediately updated our list to include cited celebrities and Perfect 10 models. ##### Order # 3. Cybernet shall not permit access to any "Identified Website" (as hereafter defined) via links on Cybernet's website or through the use of an Adult Check ID, nor shall Cybernet otherwise permit an identified Website to use any of Cybernet's computer facilities unless the Identified Website's owner, operator, or agent registered with Cybernet has complied with counter-notification procedures no less stringent than those found in 17 U.S.C. § 512(8) and the website owner is not an appropriately terminated user under a policy complying with 17 U.S.C. § 512(1). Cybernet shall use an identical counter- notification standard for alleged copyright and right of publicity violations. "Identified Website" shall mean any of the following: (a) Any Adult Check website that Cybernet knows or has reason to know contains any Prohibited Content (as defined in Paragraph 10 below), unless the website operator produces Rights Documentation for all Prohibited Content or a counter-notification meeting standards no less stringent than those found in 17 U.S.C. § 512(8). (b) Any Adult Check website identified in Exhibit B to the Third Amended Complaint, unless the website operator produces Rights Documentation for all Prohibited Content or a counter-notification meeting standards no less stringent than those found in 17 U.S.C. § 512(g). (c) Any Adult Check website that Cybernet is given or has been given adequate notice that it contains Prohibited Content, unless the website operator produces Rights Documentation for alleged Perfect 10 Works and any content concerning the Identified Celebrities and Models or a counter-notification meeting standards no less stringent than those found in 17 U.S.C. § 512(g). Our Position:  Adult Check has had an effective DMCA policy and added a Right of Publicity (ROP) Policy patterned after 17 USC § 512 well in advance of the issuance of the Court's order.  The order expands the policy to require a degree of proactivity on the part Adult Check if Adult Check knows or has reason to believe that a particular website contains prohibited content. ##### Order # 4. Prior to their addition to the Adult Check network, Cybernet shall review the content of websites to determine whether they contain any Prohibited Content; if the website contains such content and such content is reasonably apparent, or the website specifically disclaims copyright ownership or permission for those images protected by the right of publicity, then it shall not be added to the Adult Check network, unless the website operator produces Rights Documentation for such content. Our Position:  This provision requires the Adult Check site review department to review sites and make a legal determination about the content.  This shifts the burden away from the presumption that all content is legal unless proven otherwise.  However, the category of content is limited to the "Prohibited Content" as defined in the order. ##### Order # 5. Cybernet shall review on a monthly basis the content of any website that has, at any time, removed content based on right of publicity or copyright allegations without submitting a statement to Cybernet containing at least the information identified in 17 U.S.C. § 512(g), or is operated by a webmaster Cybernet knows or has reason to know has operated a website as described immediately above, in order to determine whether there exists any reasonably identifiable Prohibited Content on that website. Our Position:  This provision requires the site review department to review all the sites that have been previously noticed for violations to see if they are still in compliance.  The number of sites affected by this is less than 500 out of more than 300,000. ##### Order # 6. Within 90 days of entry of this Order, Cybernet shall review the content of each Gold website in order to determine whether there exists on the website any reasonably identifiable Prohibited Content. Our Position:  This provision requires a review of the entire Adult Check Gold System to determine whether any of the sites contain prohibited content and shifts the burden of compliance away from the Webmaster and onto Adult Check.  There are currently about 15,000 Gold sites. ##### Order #7. Within 90 days of the entry of this Order, Cybernet shall require that each Adult Check website in Cybernet's celebrity category produce for Cybernet's inspection, a copy of which shall be served on Perfect 10, Rights Documentation establishing its right to display the images of any person who has lodged a complaint with Cybernet about the use of his or her image on Adult Check affiliated websites. Cybernet shall treat any website as an Identified Website if it fails to produce such documentation for all such content. Our Position:  This provision requires Rights Documentation for all sites in the Celebrity category.  Therefore, a long-term strategic business decision has been made to take the celebrity category down and no longer allow celebrity content in the Adult Check system.  We do not see that this will negatively affect our business model as the revenue from celebrity sites make up less than 6% of our business revenue. ##### Order #8.  Cybernet shall not include on its website or in promotional materials any statements that the Adult Check websites include images or "fake" images of celebrities for which Cybernet has received notice that the celebrity objects to the use of his or her image unless the reference reasonably reflects content on the websites for which Cybernet can produce Rights Documentation. Our Position:  This provision puts an end to celebrity fakes in the Adult Check system

Dirty Sites Jittery After Ruling By Randy Dotinga  Wired Magazine   2:00 a.m. May 10, 2002 PDT  A federal court judge is sending shockwaves through the cyberporn industry by suggesting the companies that limit access to dirty pictures on the Internet could be held liable for illegal content on the websites they protect.  Adult Check, which bills itself as the world's largest "adult verification system," (AVS) followed an order by U.S. Federal Court Judge Lourdes Baird on Monday and dropped support for thousands of nude celebrity websites. Other AVS companies are expected to follow in the wake of a lawsuit that puts Adult Check on the defensive against a high-toned porn magazine and its unlikely ally, Britney Spears.    "This is about law and order finally coming to the Wild West of the adult community on the Internet," said J.D. Obenberger, a First Amendment lawyer in Chicago who specializes in defending people who provide X-rated entertainment.  No one knows how many porn sites are on the Internet, but Adult Check claims to protect hundreds of thousands of them against access by children. AVS companies sprung up after the Communications Decency Act of 1996 allowed X-rated websites to offer access to people who could prove they were adults by using credit cards.  For $19.95, Web users who sign up with Adult Check get a password that lasts three months and unlocks protected sites, and webmasters get a cut of the proceeds. Dozens of other AVS services with names such as CyberAge, Mancheck and Adult Sights offer the same service at a variety of prices.  Many of the linked sites boast pilfered pictures. "If the adult website community had a flag, it would be the Jolly Roger," Obenberger said. "They're all a bunch of pirates, in the main. They steal images from each other left and right."  To make matters more dicey, untold thousands of linked websites feature galleries of nude pictures -- real, fake or somewhere in between -- of celebrities ranging from Brad Pitt and Gwyneth Paltrow to Sarah Ferguson and Jason Alexander of Seinfeld.  The lawsuit that stopped Adult Check wasn't filed by a celebrity, however.  Instead, it came from the porn magazine Perfect 10, which claims a monthly circulation of more than 90,000 and boasts of implant-free "natural women." Perfect 10 alleges that Adult Check affiliates posted its copyrighted photos and violated the "publicity rights" of celebrities.  In the past, courts have ruled that websites cannot be held responsible for simply linking to material that violates the law. However, Judge Baird refused to let Adult Check off the hook, saying it may have an actual partnership with the websites it protects.  In one ruling -- which mentions cases involving Nintendo, Toys 'R Us, Abercrombie & Fitch and Playboy -- the judge also said that there may be a case against Adult Check for linking to websites that don't show what they promise.  If a link promises nude pictures of actress Jennifer Love Hewitt, the judge said, "one could reasonably expect to find Jennifer Love Hewitt nude images on a site with that label."  According to the judge, Britney Spears and her manager filed documents in the case supporting Perfect 10's claim that Adult Check is linking to non-existent nude photos. Perfect 10, which has a website of its own, says Adult Check is thereby violating laws against unfair competition.  On April 24, Judge Baird issued a preliminary injunction ordering Adult Check to block access to some kinds of sites. On Monday, after warning its affiliated webmasters, Adult Check cut off its protection of websites in its "Models and Celebrities" section and removed the listings from its master website.  Adult Check delisted no more than 3,300 websites, said Brad Estes, director of business development for Cybernet Ventures, Adult Check's Los Angeles-based parent company. Adult Check told webmasters that celebrity sites only made up about 6 percent of its revenue.  "Since the beginning, the celebrity sites haven't been the big draw to our system," Estes said. "It turns out that the fetish, amateur and special niche sites are the draw."  For years, attorneys have advised the webmasters of adult Internet sites to avoid celebrity nudes because of the legal problems they pose. But there could be a way out.  Websites can publish copyrighted pictures without permission if they can show that they are commenting on them such as a book or newspaper would, attorneys said.  For example, one porn site features movie stills along with biographical information on the actresses and ratings of the sex scenes in which they appear. "It's an educational and newsworthy site, therefore he (the webmaster) doesn't have to have consent. It's like a news show showing a clip from the new Star Wars movie," said Greg Geelan, an attorney and president of YNOTmasters.com, which provides support to the webmasters of adult sites. Obenberger, the Chicago attorney, thinks he knows where this is all going.  "You're not going to see celebrity sites go away," he said. "You're just going to see a lot more text."