The Middle District of Florida recently found Televised Visual X-ography, an adult film production company, liable for the unauthorized use of an individual's self-portrait photograph on the cover of one of its DVDs. The plaintiff had posted the photo she took of herself at age 14 to a Web site called deviantArt and Televised Visual X-ography downloaded the photograph for use in connection with one of its DVDs. In addition to finding in favor of the plaintiff on her claim of copyright infringement, the court found that the use of the photograph constituted image misappropriation under Florida law. The court awarded damages for reputational harm and awarded $100,000 in compensatory damages "for the humiliation and mental anguish caused by the defendant's defamatory use of her self-portrait" in connection with pornography. The court awarded a total of $129,173.20 in damages. Because the plaintiff had not registered her copyright in the photograph prior to the infringement, she did not qualify for statutory damages or attorney's fees for the copyright infringement.
TIP: Even if you have obtained permission from the copyright owner to use a particular image in commercial advertising, be sure that you have also obtained permission from all individuals appearing in the image.