DuetsBlog Collaborations in Creativity & the Law

Forget Prince; Minnesota Opens Courts to Hulk Hogans of the World with Revenge Porn Civil Action

Posted in Copyrights, Law Suits, Mixed Bag of Nuts

Recently, I attended the University of Minnesota’s celebration of “40 Years of Gopher Justice,” an event honoring the institution’s University Student Legal Service (“USLS”), a non-profit organization that provides UMN students with free legal services. The celebration included a panel on a contemporary topic in student advocacy: “revenge porn.” The topic isn’t relevant just for students, though. One may recall that just last year Hulk Hogan successfully sued the now-defunct gossip news site Gawker for its dissemination of a sex tape depicting him and another woman. Hulk Hogan eventually settled the case with Gawker for $31M.

Hulk Hogan testifies in his suit against Gawker. Image credit: Slate.

The USLS celebration panel hosted three experts on revenge porn, including two attorneys knowledgeable about Minnesota’s new suite of civil and criminal remedies that went into effect in late-summer 2016. See Minn. Stat. §§ 604.31 (civil), 617.261 (criminal). In response to my question about the civil action, one of the attorneys remarked that he believed the Minnesota law created a “copyright” to one’s image, enabling that person to prevent unwanted dissemination and exploitation of pictures and recordings depicting the person in a sexual way. For the sake of persons hoping to prevent and recover damages for unwanted dissemination under Minnesota’s new law, I hope he’s incorrect; after all, the Copyright Act preempts all state laws that overlap with federal protections over the subject matter of copyright, see 17 U.S.C. § 301(a)—which includes photographs and videos, see 17 U.S.C. § 102(a)(5)-(6).

In order to bring a civil action for non-consensual dissemination of private images (the “revenge porn civil action”) in Minnesota, (1) the defendant must have disseminated a private image without the plaintiff’s consent, (2) the image must have been of a sexual character, (3) the plaintiff must have been identifiable in the image, and (4) the image must have been obtained or created under circumstances in which the plaintiff had a reasonable expectation of privacy. See § 604.31, subd. 1. If these four elements are shown, the plaintiff may recover general and special damages, including financial losses resulting from the dissemination of an image and damages for mental anguish, disgorgement of profits made from dissemination, civil penalties, and attorneys’ fees. See § 604.31, subd. 3. See the Minnesota Senate’s overview of this law for more general information about the revenge porn civil action.

What’s interesting about this cause of action is that it’s a blend of both (1) the right to privacy and (2) an intellectual property right called the right of publicity. Right to privacy claims (for invasion of privacy) typically remedy the unjustified exploitation of one’s personality and injury to privacy interests that are emotive or reputational. Right of publicity claims, on the other hand, combat the unauthorized use of one’s identity in commercial advertising and compensate persons for the value of the commercial use of that identity and/or reductions in the value of the cultivated identity. Minnesota’s revenge porn civil action appears to be a specific hybrid of both kinds of claims; it protects both privacy and property interests in a person’s identity and provides relief in the form of both reputational and economic damages, as well as injunctive relief.

Coincidentally, when Minnesota passed its revenge porn bill in 2016, it was also considering the codification of the right of publicity under a bill entitled the “Personal Rights In Names Can Endure” (“PRINCE”) Act. But the bill’s sponsor later pulled his draft after critics expressed concerns about the bill’s broad language. One commentator questioned whether such a bill was necessary in light of Hulk Hogan’s victory. Minnesota’s revenge porn civil action arguably combined two separate claims into one, but it also expanded the scope of recovery under either claim so as to now include multiple forms of relief.

Whether the revenge porn civil action will be utilized to any significant degree is as of yet uncertain. The USLS celebration panelists noted—and a brief case search confirms—that courts have yet to extensively apply and interpret the law. From the face of the law, though, it appears that Minnesota is now a hospitable forum for victims of revenge porn, especially celebrities with economically-valuable identities. And due to the state’s broad remedial scheme, I would not be surprised if we eventually see large cases like Hulk Hogan’s in Minnesota courts.