copyright infringement claim against anyone who published her sex abuse images after the
registration of her copyright and seek statutory damages under 17 U.S.C. § 504.410 However,
although the Copyright Office agreed to waive the registration fees, the Office initially insisted
that the images had to be submitted with the application.411 Neither Amy nor her uncle had the
images since they had been confiscated by the F.B.I. The F.B.I. refused to provide Amy, her
attorney, or the Copyright Office copies of the sex abuse images since to do so, they argued,
would violate the Adam Walsh Child Protection and Safety Act.412 Amy’s attorney was finally
able to convince the Copyright Office to submit written descriptions of the sex abuse images
instead to complete the registration.413
The advantages for a child pornography victim like Amy to register a copyright to her sex
abuse images is not limited to the ability to seek statutory damages for infringement. It also
allows the victim to demand that Internet Service Providers (“ISPs”) notify the infringer, take
down the images, or lose the safe harbor protections of the Digital Millennium Copyright Act.414
If the Internet Service Provider fails to do so, the provider may be liable for monetary damages.415
Either way, the victim benefits by being able to gain more control over the distribution and
posting of her sex abuse images online, as well as having another source of recovery for the funds
needed to support her restoration and reintegration.
Indeed, legislators should consider automatically assigning copyright to all sex abuse
images (and all derivative works) to the victim portrayed, so that the victim has control over the
images and is able to utilize copyright protections to limit their distribution and to seek damages
from both individuals and ISPs who play a role (actively or passively) in perpetuating her
victimization.416 In the meanwhile, child pornography victims, their attorneys, and the
government should seek an assignment of the copyright to the victim in all of their sex abuse
images in concert with the criminal or civil proceedings against child pornography producers.
F. The Role of Private Industry: Private Regulation, Vicarious Liability, and Technological
Given the significant role that commercial technology has played in the global expansion
of the child pornography industry and the perpetuation of victimization due to the digitalization
and rapid redistribution of child sex abuse images, it is critical for private industry to be actively
engaged in the effort to curb child pornography and protect and restore victims. As discussed in
;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;; ;
410 Id.; 17 U.S.C. § 504 (2012).
411 Interview with James R. Marsh, supra note 181.
412 Id.; 42 U.S.C. § 16918 (2012). The Adam Walsh Act severely restricts access to child sex abuse images. Adam Walsh Child
Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 623 (2006). Although the initial intent of the restriction was to
limit the alleged perpetrator’s access to the images, the law has been interpreted by some government agencies to restrict access both
by other government agencies and the victim herself. Interview with Andrew Oosterbaan, Jeffrey Zeeman, and Mi Yung Park, U.S.
Dep’t of Justice, Child Exploitation and Obscenity Section, in Washington, D.C. (Apr. 3, 2014); Interview with James R. Marsh,
supra note 181.
413 Interview with Andrew Oosterbaan, Jeffery Zeeman, and Mi Yung Park, supra note 412.
414 Digital Millennium Copyright Act, Pub. L. No. 105-304, § 512, 112 Stat. 2860, 2879 (1998).
415 Id. § 202.
416 Copyright as a remedy for victims of child pornography, revenge porn, and sexting should be considered in greater detail and more
depth than space here allows, and the authors strongly encourage scholars, policymakers, and lawmakers to do so. Questions to be
answered include when and how the copyright would vest (for example, the copyright could vest at the victim identification and
notification stage), what is to be included as child sex abuse images subject to this automatic assignment (the federal definition of
child pornography could be adopted), whether to waive notice requirements, registration, and fees, and whether the rights would be
retroactive to the date of production. Of course, under normal circumstances, public policy would argue against the ability to hold
copyright to child pornography but, under these circumstances, empowering victims to be able to actively pursue the take down of
their images online, and to have increased access to monetary damages justifies a departure from this policy. Moreover, even if
copyright could be held in child sex abuse images as a matter of public policy, the government could hold the copyright in trust for the
victim, which would prevent perpetrators from owning the copyright, while still allowing victims to utilize copyright protections to
control their images and seek damages when appropriate.