When she was fourteen, Lara Jade Coton was just starting to explore photography and had been intrigued by other self portraits she had seen in her class. Inspired, She got her hands on a top hat and dress and she sat in a window she ran across while on vacation. There she snapped a simple self-portrait between two red curtains. It would be one of thousands of photos she would go on to take, but it would also be the one that she would become best known for.
That is because, in 2007, Coton got a message through the art site deviantArt (dA) that someone had recognized her image on the cover of a DVD. Though only seventeen when, she had already been growing in notoriety in photography circles, in particular on dA, and it was one of her followers there who gave her the link.
It was that link that kicked off one of the most bizarre cases in recent copyright history and one of the more important ones for smaller content creators. With the case concluded, we’re going to take a look back at the lawsuit, how it started, how it was battled and what the outcome means.
As you’ll see, the case was a long, winding and at times emotional road but one that may have direct implications for smaller content creators all over the globe.
Strange and Angry Beginnings
As Coton began to investigate the DVD on her own, she quickly learned that it was a pornographic DVD and, specifically, a re-release of the 1982 film Body Magic (link SFW).
After contacting Hustler, who was selling the DVD on their site, she found out that the video had been released by a Houston-area company named TVX Films. TVX and its owner, Robert Burge, specialized in wholesale rereleases of “classic erotica”. As part of this, they re-release old films with new covers and had chosen Coton’s photo for their release of Body Magic, likely because the original cover had a photo of a woman in a top-hat.
When Lara Jade contacted Burge, what she received was a nasty reply, written in all caps and littered with spelling and punctuation errors. One famous passage read (capitalization his):
“I’M SURE BY THE END OF THE MONTH YOUR FACE WILL BE HISTORY. WE HAVE STOPPED SELLING THE DVD UNTIL COVER IS REPLACED. WE HAVE FURTHER CHECKED OUT YOUR NAME AND ITS NOT LIKE IT’S A HOUSE WHOLE NAME. ACTUALLY, REMOVING YOUR IMAGE WILL HELP IMPROVE THE SELL OF THE DVD….. SO FAR IT BOMBED”
Burge also claimed that the company that created the cover did their research and that the image was in the public domain. He accused Coton of “scheming” to set him and that, on the question of compensation that Coton was “Silly”.
Despite this, Burge did begin the process of recalling the DVDs and removing Coton’s image from the cover. Coton, not satisfied with Burge’s response, began contacting solicitors in her area. However, it proved to be largely a futile exercise.
“Since I was from the UK and the company was in Texas, the solicitors wanted tens of thousands of pounds to take the case. My parents couldn’t do it, I don’t come from a wealthy family,” Coton said.
It was then that Coton took her case to the Web, posting on dA about the incident. The case not only became the talk of the dA community, but quickly spread to other sites, including several mainstream media outlets.
“I didn’t expect the reaction to happen that way,” Coton said, adding that others seemed to react to the case very strongly
However, for a while it didn’t seem as if anything would come of it beyond some negative press for Burge and TVX and some additional media attention for Coton as there was still no hope for filing a lawsuit with no attorneys willing to take the case.
An Offer to Help
According to Richard Harrison, it was on a “gossipy” blog that he first heard about Coton’s plight. A Tampa-area attorney, Harrison he reached out to Coton and agreed to take on the case at no cost her, accepting only a contingency fee, saying that it was something that meant a lot to him and his firm, Allen Dell, to take on.
However, the case almost never got off the ground. Harrison ordered several copies of the DVD only to find that the cover had already been changed. With no evidence, there was little that could be done in pushing the case forward. The DVDs sat, unopened in his office for some time before he decided to take one out. There, on the DVD itself, he found Coton’s image.
With this new discovery, on July 31, approximately two months after he first reached out to Coton, he filed suit in Tampa District Court.
The initial complaint (PDF) listed Burge and TVX as defendants and also included two other media companies involved in the distribution of the DVD, both of which eventually settled out of court and had their cases voluntarily dismissed. Burge initially protested the lawsuit on jurisdictional grounds though, in April 2008, his motion to dismiss was stricken (PDF) after his attorney failed to follow procedure and be admitted to the court. Eventually, in October of the same year, the two parties agreed to voluntarily consent to the jurisdiction of the court (PDF).
But it was the delays and procedural problems that defined much of the case. According to Harrison, at least two attorneys attempted to represent Burge and TVX though both were not able to continue on procedural grounds. Burge represented himself for most of the case (pro se) but since corporations can not represent themselves and TVX failed to find a representative, it was found in default (PDF) in October 2008. Burge himself, largely due to his lack of timely and proper filings, was found in default in February 2009.
However, this didn’t stop Burge from making filings in the case. He would often file long, rambling petitions filled with inaccuracies about copyright law. Many of his motions included pages of “evidence” that, often times, just included different copies of the image he’d found on the Web. One of his motions, filed at the end of the trial, included a tirade against the VA healthcare system (PDF) and openly insulted the court for not allowing him the time he felt he needed. This, in turn, would force Harrison to respond to the motions and usually have them stricken from evidence.
Despite the odd filings from Burge, the defaults set up the trial earlier this year, which was on the issue of damages alone. Though Burge had not attended any hearings in some time, there were rumors that Burge might come into Florida for the trial.
“It was very scary,” Coton said, “I was very worried he was going to show up,” saying that her one face-to-face meeting with Burge during depositions was far less than cordial and Burge seemed to her to be a very “angry” man.
However, the worry was for nothing as no one represented Burge or TVX. Coton and Harrison were able to present their evidence to the judge without opposition, thus bringing an end to the trial.
In the end, the judge awarded Coton nearly $130,000 in damages, including $100,000 for defamation and $25,000 for misappropriation of image. The rest was for the copyright infringement claims.
It brought an end to the now three-year old case, but certainly hasn’t ended the questions and debates the case raised.
Far From “Over”
Though the decision is certainly an important win for Coton and for photographers everywhere, the case is far from over. With judgment in hand, there is still the issue of collecting on it, a matter that could prove to be very difficult.
Given that Burge’s native Texas is what Harrison calls “a debter’s heaven” it remains to be seen what, if any, assets Burge has that can be collected on. Though Harrison has pledged to attempt to follow Burge “to his last breath” in an attempt to collect for his client, he admits to being skeptical that he will see most of the judgment.
“I would be shocked if we get another nickel out of this case,” Harrison said.
In addition to the question of collection, according to Harrison he and his firm have donated “well north of $100,000″ in fees to the case. If this case were not
pro bono taken on a contingency fee basis, even if Harrison were able to secure complete collection of the judgment, most of it would be eaten up by fees and Coton herself would only see very little, if anything, from it.
This would be especially true if it were not for the fact that the photo in question was a self-portrait. With $125,000 of the nearly $130,000 in damages being for the defamation and misappropriation of image claims, less than 4% of the damages came from the copyright claim. The reason for this is that Coton, as a UK photographer, had not registered her works with the U.S. Copyright Office and, though she could file suit, she could not seek statutory damages and attorney’s fees.
In short, without Harrison and his firm’s
free legal help willingness to take the case on a contingency basis at a loss, this case most likely would not have been practical to pursue. But even with his help, without it being a self-portrait, there is almost no way that this case would have seen the kind of damages that it did generate.
That being said, there is little chance of an appeal from Burge. Since he is in default, the odds of an appeal being successful are slim to none and the likelihood of him filing such an appeal are equally small. So, other than collection, it seems likely that this case is over.
Effects From The Case
With the case done both Coton and Harrison have been looking back over the, at times, very wild ride.
For Coton, it has been something of a mixed bag. Though the media attention has helped her with her career in some ways, the fact her image was on a pornographic DVD has hurt her.
“I’ve been scared of clients finding out about this,” Coton said, “It isn’t good for any big clients to be associated with porn.”
One job in particular, a project that would have the camera company Canon sponsoring her has been put on hold pending the resolution of the case.
The biggest problem Coton had been that, since the image was used on the cover of a pornographic DVD that many, incorrectly and without seeing the image, assumed it was a nude photo. This, according to her, has hurt her reputation as both a photographer and a model.
Still, Harrison and Coton both are very happy with the outcome of the case. According to Harrison, “Everything our client wanted to accomplish, we accomplished, we protected her image, we protected her reputation and we protected her copyright.”
He also said that the damages awarded were “fair” saying that, as is typical for such cases, they had presented multiple legal theories on damages were not allowed to double dip. Also, he knew that much of the punitive damages were a “stretch” given that, at the time of the act, Burge wasn’t likely doing anything with malice.
So, even though they had requested over $400,000 in damages, the $130,000 awarded seemed, to him, to be “about right”.
Coton is cautiously optimistic about collection and hoping that the money, if it does appear, can be used to help finance her move to the United States, specifically New York.
If anything, this case serves as a warning. First and foremost, to anyone who would seek to use Google Images or the Web at large as a tool to find stock photos. Most of the content on the Web is copyrighted and using something without clearing all the needed rights is opening the door to a wide array of legal troubles.
It is also a warning content creators though, that your work is valuable and it can be used (legally or illegally) for commercial purposes. When Coton took the photo in 2004, she was just having fun with her camera and learning her hobby, she never envisioned it being used commercially, let alone on the cover of a porn DVD.
This makes it vital that, before you put works online or timely thereafter that you register your works with the U.S. Copyright Office, especially if you want to prevent unauthorized commercial use. Not only do you need such a filing to even start a lawsuit, without a timely filing you can’t seek statutory damages and attorney’s fees, making it almost impossible to justify a lawsuit.
While the Lara Jade Coton case is a major win and one I hope makes other infringers pause before lifting the works of others, especially for commercial use, it also highlights the responsibilities of content creators to protect their work.
On that note, I want to thank both Lara Jade Coton and Richard Harrison for sticking through this fight and seeing it through to the end. They have done content creators everywhere a major service by sticking up for smaller creators against very high odds.
Update/Correction: Richard Harrison emailed me to correct the issue that his firm did NOT work pro bono but, instead, worked on a contingency fee basis. This means they are paid a portion of damages collected. However, that is rare in these types of cases as, usually, there is no way to recoup the full costs of the case via this means, meaning it was taken at a steep loss. I have updated the text of the article above to reflect this change.