The Government Wants to Help You Copyright Your Nudes

Across the street from the U.S. Supreme Court, under the long shadow of the Washington Monument, sits the stark, effectively windowless James Madison Memorial Building. It’s the home of the U.S. Copyright Office, the government entity responsible for granting copyright registrations for our nation’s fire nudes. 

You read that right: fire nudes. Deep within its stark white walls, past the high-security access points not open to members of public, a league of copyright specialists from multiple departments unites to issue legal protection to your thirst traps, butt selfies, cake sits, dick pics, sex tapes, wet T-shirt championship photos and more, a service they’ve been offering for creative works of all mediums since 1790 when the original Copyright Act was passed. 

But while the Copyright Office makes no legal distinction between nudes and non-nudes and they’re processed in the exact same way, the fact that they offer this service at all constitutes what has to be among the strangest, least expected interactions between the U.S. government and its citizenry. We’re talking about a country that’s legislated every bit of nudity off the streets and internet; one that happily allows teens caught sexting to be imprisoned as sex offenders, a label they’ll carry for for life; one that still censors female anatomy in school-based sex ed and in art; and one that’s so pathologically fearful of sexual content that it overwhelmingly allowed the passage of FOSTA and SESTA, a pair of bills that hold websites criminally liable for content that promote prostitution. Yet, here’s Uncle Sam, alive and well in the James Madison Memorial Building, safeguarding people’s dirty photos with the promise of copyright. Why? 

The reason is simple: Nudes, like non-nudes, have creative value. And copyrights exist to promote creativity. In fact, the Copyright Office was erected in 1897 to administer laws that facilitate that creativity. As such, current laws explicitly allow for “pornographic” or “obscene” material to be registered for copyright, and anyone over the age of 18 can register to claim legal ownership over their nudes, no matter how intimate, X-rated or shagadelic they are. 

There are many reasons you’d want to do this, but the juiciest is that registering your nudes for copyright makes it so that if someone takes them from you, distributes them without your permission or claims wrongful ownership of them, you can sue them for a shit ton of money, and you can win. According to internet defamation and brand protection lawyer Daniel Powell, copyrighting your nudes can give perpetrators a legal consequence for messing with you, give you a better chance of having your nudes removed from wherever they were posted and make you eligible to receive both compensation for lost income and up to $150,000 for statutory damages. In other words, if someone tries to use your copyrighted nudes without your permission and you can a) prove you’re the lawful owner, and b) spare the time, energy and money it takes to go after them, they’re pretty much fucked. 

Even if you don’t know who’s posting your nudes, a copyright can help. Per the Communications Decency Act, public websites such as Reddit and Instagram are required to remove any copyrighted images that their users post (but only after being properly served with takedown notice under the Digital Millennium Copyright Act, or DMCA). 

Because of how protective a copyright can be, Powell recommends any public figure dabbling in nudity should do so lest they find themselves in some sort of Jennifer Lawrence situation. However, he says registering nudes for copyright has also become an increasingly popular option for everyday people looking to safeguard themselves against the alarming rise in revenge porn and sextortion.

According to a recent examination of non-consensual pornography in the U.S. by the journal Feminism and Psychology, 1 in 10 former partners threaten to post nude images and videos of their exes online, and an estimated 60 percent follow through with it (though other studies have found those rates are much higher). Unsurprisingly, 90 percent of revenge porn victims are women and nearly all perpetrators are men (though not all are ex-partners — friends, co-workers and strangers post private nudes, too).

The consequences are scary — 80 to 93 percent of revenge porn victims suffer significant emotional distress after the release of their nudes, and often deal with feelings of extreme anger, guilt, paranoia, depression and even suicide, something 51 percent of revenge porn victims consider after their nudes are shared without their consent. There may also be deterioration in personal relationships and feelings of isolation that lead to lost jobs and relationships — a revenge porn fact sheet compiled by the Cyber Civil Rights Initiative found that 82 percent of victims experienced a “significant impairment in social, occupational or other important areas of functioning,” and nearly all said they were harassed or stalked by people who saw their leaked images. 

Basically, if you’re like the 88 percent of American adults who sext with nudes and store them on a semi-easily accessible place like your phone or computer, it’s a good idea to protect yourself against their unlawful usage. Registering them for copyright isn’t a fail-proof method for doing so, but it is, as the Washington Post noted in 2014, often the “easiest way to get compromising images off the Internet.”

In one case, “Hilary,” a pseudonymous woman profiled by CNN in 2015, was able to have some of the nudes she sent her ex taken down from the platforms he’d maliciously posted them on by leveraging her copyright against him. In another, a celebrity nude thread on Reddit was famously removed after users voiced concern that sharing the photos amongst themselves constituted copyright infringement (though, of course, they weren’t at all concerned for the safety or well-being of the female celebrities being targeted). And in 2012, TV news anchor Catherine Bosley sued Hustler for $135,000 over its unlawful publishing of a racy wet T-shirt contest photo featured in the magazine’s “Hot News Babes” feature. Bosley declined to comment for this piece, but her lawyer referred to her as a “role model” during his closing arguments, saying that if his daughter lived up to her standard of “not giving up and sticking up for what she believes in,” that he’d be “one proud father.”

Now, if you want to copyright your nudes — which, again, why not — there are a couple of things you should know. 

The first is that once you hit the shutter button or press “record,” that image or video is yours. You automatically own the copyright whether you register for it or not, which is good news considering that in 80 percent of revenge porn cases, the victims created the nude themselves. However, if you want to give your ownership a legal backbone that you can threaten or prosecute a perp with, you’ll have to go through the registration process. Doing so is easy and can be accomplished at copyright.gov for between $35 and $55, depending on the type of media. According to the Copyright Office, either you or an approved agent like a lawyer can register to copyright any image or video you’re the original creator of; it just can’t contain child porn (duh), and it has to meet the basic criteria for a copyrightable work (see Section 302).

The protocol for processing a copyrightable nude is exactly the same as it is for any photo or video the Copyright Office receives. It’s sent in — usually in a zip folder or on a memory card — and the registration application is reviewed by an examiner to deem whether or not the material can be registered for copyright. That doesn’t mean there’s a guy sitting behind a desk at the Copyright Office clicking through the memory stick you sent of your “Caribbean Sex Vacation,” though. While examiners are required to look through at least a portion of the photo or video files you send them to determine whether they’re original and creative works of expression, the Copyright Office’s Compendium of Office Practices prevents them from determining whether or not your submission contains “obscene” content. 

That means two things. For starters, that the U.S. government doesn’t particularly care whether you’re sending them nudes or photos of your grandpa. Second, that they’re not spending a lot of time or energy looking at your nudes. If they were, they’d have to go through every single photo or video they get sent — which is often hundreds at a time — and ain’t nobody got time for that. 

Their main concern is what you wrote on your application and the list of file names you’re required to send with it, the likes of which tend to be far too vague to indicate that what you’re sending them is hot xxx content (most things are just sent in as something like “JPEG_5837” or “Image004,” they say). This means that, unless you give your files curiously explicit names like “Nice Close-Up of Mandy’s Bazongas,” there’s no telling if your memory card or zip file is full of landscape photography or labias. 

Additionally, since the Copyright Office collects no data on the content of photo or video files it receives, it’s impossible to know which of the 600,000 new registrations of all creative mediums the Copyright Office issues each year are nudes, wholesome family portraits or half-baked student films with horrible sound design. So once more, although a branch of the U.S. government can technically process and store your nudes for you, they neither know nor care what they look like. Believe it or not then, your privacy and your decency is safe in the hands of Uncle Sam. 

Currently, registration application processing wait times are around five months, but if your copyright is approved, it’ll be valid for the course of your lifetime, plus 70 years after your death, ensuring that none of your great-grandson’s little crap-faced friends can distribute or profit from your sex tape unlawfully. 

If your copyright registration is approved, Powell says the next logical step would be to file a DMCA notice. This serves as a warning to whoever’s sharing or displaying your copyrighted nudes that if they don’t remove or stop circulating them, there will be legal consequences. And while that won’t necessarily stop someone from distributing your nudes in the first place, he says these notices do tend to encourage perpetrators to take them down before the issue gets taken to trial. (If the DMCA notice fails? It’s court time, baby — if, of course, you can afford it and can wait half a year for your registration to be processed.)

Thing is, while copyright infringement is a viable defense in cases involving nudes, Powell says these kinds of trials aren’t terribly common. He hardly ever works on cases in which people use copyright as a defense against things like revenge porn in court, and he hasn’t heard of many other than Bosley v. Hustler that have (he says they’re much more common in the porn industry than for individuals looking to avenge the illegal theft of their nudes). Part of the reason why, he says, is that sending your nude images to the government just isn’t something many people think they can do. The other part is that copyright isn’t always the quickest or quietest way to punish a perp or have your nudes removed. 

“Copyright violation suits are all public record,” says Powell. “So if you want your nudes taken down quietly, pursuing a copyright infringement case isn’t always the best idea. Copyright is very useful, but there are also other, more private ways to go about it.”

For example, revenge porn, hacking and extortion statutes — which are now on the books in most states — could allow you to press criminal charges against whoever unlawfully uses your nudes. Civil suits for things like defamation and emotional distress are another option. In some states, you can even file a Jane or John Doe suit to protect your anonymity. The route you take all depends on your individual circumstances and what the laws are like where you live. 

Copyrights aren’t a perfect defense against revenge porn and sextortion, but even so, Powell says they’re still a strong statement, and one of the more accessible methods individuals have to defend themselves with. “Nudes can spread fast, and having a copyright on an image isn’t always going to take care of it,” says Powell. “But if you’re looking to protect yourself against something like revenge porn or hacking, I’d say it’s a good tool to have.” 

---

Isabelle Kohn

Isabelle Kohn is a sex and relationships journalist, educator and consultant who, for some reason, keeps writing about livestock instead. She writes features and long-form pieces for MEL, usually without the help of Clippy.