The person who "presses the button," so to speak, owns the copyright of a photo (I think that is how the law is currently). The core of the crime for the Illinois Supreme Court is distribution without consent of the subject. I suppose then that if one owned an image (which meets to the other conditions of the statute, i.e., appropriately sexual) of some person A, one would need some reasonable basis for believing one had consent to distribute from that person before one could sell the image? The statute is set in terms of 'knows or reasonably should know that the person in the image has not consented to the dissemination' so there is some sort of reasonable person statute. Does the subject have to be alive at the time of distribution? Or would the estate be able to file a complaint? The person depicted has to be identifiable, so that is a limit. An important limit I would think, as it places lots of images outside the scope of the statute because too old or obscure in origin. But these are details of enforcement that will not get sorted out for a long time.
At the center of the Court's decision is the view that the statute is content neutral regulation of time, place, manner, that it constrains only distribution. It is aimed at privacy protection, not suppression of sexual images. Consider paragraph 66 -- the harms listed look like they arise from the fact that sexual images are still largely considered shameful -- that is why a threat to disclose the images may coerce a victim. Suppose that one made a drawing of the image, would distribution of that image be barred? I think so, although if the chain extends a bit it easy to see protections disappearing. (A uses the image as a model for a class; A would violate the law but I think none of the students would unless more was involved.). Which gets to this as an example of how context driven any interpretation of a statute will be. Image is defined as, inter alia, " a photograph, ... or any other depiction or portrayal of an object, including a human body." A written description is a depiction or portrayal (I think -- maybe Illinois defined those terms as well, which would be a surprise). So the Defendant may be liable in this case whether or not she had attached the images to her letter.
¶¶ 3-8 give the facts of the case, which illustrate how much this sort of statute will end up a matter of prosecutorial discretion. The victim knew that the account on which she sent texts and images was a shared account.
Recent Comments