Legal Considerations for Sharing Content

Disclaimer: None of the information in this article is to be considered legal advice, or any other kind of professional advice. You and you alone are responsible for any and all of your decisions and actions regarding the production, reproduction, sharing, distribution, and redistribution of any content, as well as any other topics covered or referenced in this article. The information in this article is provided as is, with no explicit or implicit warranty and with no explicit or implicit guarantees of any kind, to include but not limited to any guarantee of accuracy or completeness. If you wish to take any actions related to the topics in or related to this article, it is highly recommended that you first consult with your own legal counsel or attorney.

Introduction​

In many online kink communities it is not uncommon to see users sharing produced content that they enjoy, but that they do not own the rights to themselves. Doing so is an illegal activity. The reason it continues to go on is many fold. One big reason is that many adult content platforms don't have the technology or resources to deal with the problem in a way that is effective at scale. Another big reason is that producers themselves, especially in niche markets, often have even less resources, so while they can take action against some who infringe their copyright, there are still those that are missed. But another very big cause of such illegal activity is the vast number of individuals who simply misunderstand copyright law. Those individuals are the target of this article. Increasing awareness and bringing clarification to these topics is important for long-term protection of producers, consumers, and misinformed violators. While most developed countries today either adopt most of the concepts of U.S. copyright law, or honor it when applicable, the scope of this article is only specific to U.S. copyright law.

What even is copyright?​

Copyright is the exclusive right granted by law for a specific period to the creator of an original work to control the reproduction, distribution, and derivation of the work as intellectual property.

Let's unpack that a bit. I think the first thing to focus on here is the "exclusive" qualifier. Copyright protects the creator of a work by only allowing them control over their work. If anyone else tries to reproduce, distribute, or derive from that work without explicit permission from the creator, then they are infringing upon the creator's copyright and may be found legally liable.

The specific period referred to above is defined within the applicable law, but for individuals is usually the creator's lifetime plus seventy (70) years. There are more nuances to this period than that, but that is the most applicable period. Always consult a legal professional if you are unsure for your situation.

Lastly, I would like to expound upon the concept of what a work is within the context of copyright. A work simply refers to a creation fixed in a tangible medium of expression. For examples, think of works like books, articles, webpages, photographs, images, videos, paintings, drawings, music, designs, sculptures, and computer software. That is not intended to be an exhaustive list, but to merely give you an idea of what kinds of things I'm referring to when using the word work or creation. It's also important to recognize that copyright applies to digital works as well as physical works. So, whether a new book is all digital, physical, or both, copyright applies.

I purchased some content, so now I own it, right?​

It depends upon the type of work, the terms under which you purchased the work, and what you mean by owning it. So let's start with an example. Let's say you bought a kinky comic book in printed physical form. You have the book there in your hand. You own that book in terms of the physical materials of that book. You may lend it out, sell it, or donate it if you wish. What you cannot do without explicit permission from the copyright holder (usually the publisher or the original author) is make a copy of the book, reproduce the book or parts of it, or take original ideas or characters from the book and use them to create a work of your own.

Now let's say you purchased the same comic book, but it is in digital form. In this case, it is extremely likely that what you have purchased is a license to store and consume the content on a specific number of digital devices that you own and control. Depending upon the terms of the purchased license, you may or may not have any of the same rights I listed for the example for the physical book. In most cases, you do not. This is the case for the vast majority of adult content sold in digital form online.

What about sharing free content?​

Free in terms of whether or not payment was exchanged for the content is different from free in terms of one's ability to freely use or distribute the content in whatever manner they wish. So for example, let's say I take a sexy photo of my wife and we decide to share it on an online platform. Provided that the terms of use for that platform do not say otherwise, I retain the copyright to that photo. Usually the platform's terms, which I agree to by using the service, state that I am granting a license to the platform to host and display the photo under the normal functionality of the platform. If you wanted to share the photo I posted, you could link to it or share it using built-in features within the platform. But, if you wanted to were to download the photo and send it to a friend by email, on a different platform, or even by posting to your account under the same platform, that would be considered an infringement of my copyright, an illegal activity.

This is confusing to a lot of people. I often hear, "What's the big deal if it's free?" The big deal is retaining control of one's own intellectual property. Whether it has a price attached to it or not makes no difference. At some point in the future, someone may choose to leverage work for profit that they previously made freely available. Even if not, there are many personal reasons they may wish to retain sole control of their work. Their reasoning, however, is not anyone's business or right to know. However, it is the creator's exclusive right to control the work, whether you like it or not, and whether you agree with their reasons or not.

I credited the creator when I posted their content, so I'm good, right?​

Unless the creator granted you an explicit license to do so, or legally transferred the copyright to you, then no! I've seen this a lot on Youtube, where someone will post a song or other content to which they don't own the copyright, along with a statement similar to, "This is not mine. XYZ owns the copyright. Don't report this because I am crediting the owner!" It just shows how many people misunderstand what copyright is and what problems it is intended to solve. Now, it is important to note that when a work is licensed to someone, that license often comes with certain stipulations and requirements. So, sometimes there is the requirement to credit the original creator when using the work in compliance with the license terms, but simply justifying the use of the work by crediting the creator with no granted permission to use the work is copyright infringement.

What are derived works, and can I share them?​

A derived work is a work that was based off of another work. The ability to create derived works is the exclusive right of the copyright holder of the original work. So, no matter how much you want to create your own SpongeBob SquarePants episode and upload it to youtube, you can't legally do so without explicit permission from the copyright holder. That remains true regardless of your intentions for the episode (free entertainment, profit seeking venture, etc.). Also note that the copyright holder of an original work also holds the copyright of works they derive from those original works. In terms of sharing, derived works are treated like original works.

What is fair use?​

I think a lot of people know just enough about fair use to feel justified in using it to do something they want to do, but not enough to actually use it correctly in a legally sound way. Fair use is a provision in copyright law that allows those who do not have permission to use a copyrighted work to, nevertheless, be able to use parts of the work under certain circumstances for purposes such as commentary, criticism, parody, news reporting, scholarship, and research. Simply being used for the right purpose is not the only requirement for being considered fair use. Four established factors must be considered when determining whether use of copyrighted material, or a portion thereof, constitutes fair use: The purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the used work, and the effect upon the value or potential value of the work. I am not going to expound upon these factors, nor any aspects of how one can ensure they are within the legal bounds of fair use, but if you intend to exercise the provision of fair use, I suggest reading as much quality material about it that you can find first, and seek professional legal consult before taking any relevant actions. The topic of fair use can get very complicated on its own, and it's worth stating that, ultimately, in the event of a legal dispute, it will be up to interpretation through the courts as to whether your use of the work satisfies the four factors needed to constitute fair use. Furthermore, the law does not restrict the courts from considering other factors in addition to the four codified ones. Lastly, I want to dispel a family of very propagated myths that essentially espouse that there is a pre-determined number of words, number of musical notes, duration of a recording, etc. that determines the line for what constitutes fair use. No such amounts of a work are defined. Each use of a work is weighed individually against the aforementioned factors to form a judgment as to whether fair use applies.

Am I allowed to make porn parodies?​

Parody is one of the purposes that potentially fall within the scope of fair use, but as I described in the fair use section, the use must also undergo analysis through the four factors also mentioned in that section. Simply making something a parody, porn or not, does not inherently guarantee that it is considered fair use. Of course, you are always able to make a parody of work to which you own the rights, or to which you have been granted a license to do so.

Is fan fiction and fan art legal?​

Within the context of copyright law, there may be circumstances in which it is legal under the provision of fair use. On this topic, special attention is often focused on whether it is a non-commercial use, how transformative it is from the original work, how much of the original work is used, and how the use impacts the market value of the original work. But like for all fair use applications, a full analysis of the four factors should be undertaken. The question of whether any form of fan work is allowed under copyright law when the fan does not have permission or rights to the original work, is a question of whether or not the fan work constitutes fair use.

What is the public domain and how does it work?​

The public domain is a term that refers collectively to all creative works that are not subject to protection from intellectual property law, to include copyright law. Works may be considered to be in the public domain as a result of an expired copyright, the copyright holder releasing the work to the public domain, or the work being ineligible as a copyrightable work. If a work is in the public domain, anyone can use the work without limitation or risk of infringing copyright or other intellectual property protections. Many fictional characters, written works, and other creations from the past have become part of the public domain due to expired copyright. A fairly recent example of this that most will recognize is Mickey Mouse, which can now be used freely by the public without permission from, or legal action by, Disney.

I'm a creator and have a work I want others to be able to use freely​

If, for whatever reason, you want others to be able to use your work without worrying about legal action by you, you can either grant them a license to use the work, or release the work to the public domain. An easy way to do this is by posting the content on an appropriate website or platform, along with a statement of either license or release to the public domain. There are several organizations that have free pre-written license terms for creators. I'd recommend starting by reviewing the many license options offered by Creative Commons. They also have a license that explicitly releases the work into the public domain., if that is what you are looking for. However, if you are looking for a much more fine-tuned set of license terms, perhaps with more stipulations or requirements than you can find in the freely available ones, you should seek professional legal assistance. Whatever you choose to do, make sure you understand the full implications of any actions before taking them. Once a work is released to someone under special terms, they may be able to use that work indefinitely, and in ways you find disagreeable.

What are the consequences of copyright infringement?​

There is a wide range of possibilities, from court orders to pay damages in a civil case, up to and including large fines and prison time for those situations that escalate to criminal cases. In a civil case, the burden of proof is on the copyright holder, while in a criminal case, the burden of proof shifts to the government. In either circumstance, the plaintiff may allege damages far beyond what the defendant might expect for a given infringement, and if the defendant is found to have infringed the copyright, they could be liable for the totality of those damages.

What can I do to help reduce the occurrences of copyright violation?​

The first thing to do is make sure you're not doing it yourself. Familiarize yourself with the topics covered in this article and ensure that you are not part of the problem. In this age of quick and convenient digital content, it's easy to download or share something mindlessly without consideration of the rights of the owner. If you see what you believe to be an infringement of someone else's copyright, contact the copyright holder about it. It is ultimately their responsibility to report it to whatever platform. In addition, do not encourage or support accounts on social media or other platforms that upload content they don't own. Educate others about the long-term damage to the content ecosystem caused by copyright infringement.

In closing​

Thank you for reading this article. I hope you learned something new, or refreshed your knowledge about some key copyright concepts. If you notice any mistakes or feel there is a need for clarification to something within this article, please send me a private message and I'll take your feedback into consideration.