I read about this case last week. Although pretty straightforward from a legal point of view it made a good story: hard-working teenage amateur – check; evil Texan pornographer – check; lawyer-done-good – check; copyright issues – check; amusing email exchanges – check; and justice served – check.
An interesting point that arose was the separation in the US between copyright and publicity rights (see Eric Goldman’s report). Even if a photograph on the Internet appears to have a permissive (copyright) Creative Commons licence, if it features or references one or more people, and is used in advertising, you will also need to obtain permission from those people with regard to their publicity rights. This was apparently poorly considered by the court.
Another interesting aspect is the registration of copyright works in the US. If the photograph in question had been registered in the US damages would have been a lot higher (in the end they were around $4k) and costs for attorneys fees may have been available. However, is it reasonable to expect a 14-year-old British amateur photographer to register her photos in the US? (Or even to know to do this?) What about a Flickr account with hundreds of photos? A quick glance at the US Copyright Office website shows that there is room for improvement in terms of usability and clarity; even the material for Teachers and Students is unclear as to the registration process (i.e. What exactly can be registered? What fees are required? How does registration function for works uploaded to Internet sites?)
In the present case, if there was no additional defamation action, it would likely not have been worth pursuing a copyright action. The issues with registration and enforcement raised by the case are not unique to the US; however, they again demonstrate that some form of global copyright is needed (e.g. to protect artists and their works) but that the present system(s) need revision in the Internet age.