Posted Monday, October 19, 2020
Sharing Shyli’s and Jordan’s OnlyFans vids? It’s copyright breach even if it’s porn

Over the past few weeks, the site OnlyFans.com became a hot topic of discussion in Malta following the publicity of Maltese couple Shyli Rose and Jordan Grech who openly encouraged persons seeking sexually explicit content to subscribe to their content by joining the site.

Not long after, the couple heard news of their content being copied by certain users for the purpose of distributing it with others, which goes against the site’s strict Terms of Use agreement. The couple started a nationwide search for the users who were spreading their content in order to take legal action against them for loss of revenue.

Many have been sceptical on whether or not the couple have a solid claim for damages under Maltese law and whether persons who shared the content were actually committing an offence in the first place. Since such a claim for loss of revenue by Creators of sexually explicit content has no precedent in our jurisdiction, it poses an interesting legal question which can be clarified by an analysis of our copyright laws in Malta.

The use of onlyfans.com is becoming increasingly popular, especially among young people, as their choice for viewing sexually explicit content.

On the site, creators can upload content (referred to as ‘User Content’), usually explicit and/or sexual in nature, to be viewed by users against a subscription fee. Once the subscription fee is paid, the user has access to a feed where the creator posts their content. The creators also have an option to ask users to pay extra for more exclusive and/or explicit content which would be sent directly to the user, who according to the terms of the website, is allowed to keep one copy for personal use and is strictly prohibited from sharing it.

You might think that OnlyFans is no different to any other pornographic website, but to the contrary, OnlyFans does not own the user content which is created and posted to the site. This means that creators have full rights over their content, including copyrights. In fact, the site automatically watermarks the user content on the site with the username of the creator in order to clearly indicate ownership over the content. This means that creators themselves have a direct action against copyright infringers.

Since the user content is owned by creators, the answer to whether a creator in Malta has an action against persons who distribute their content lies in Maltese law.

The Copyright Act outlines categories of works which are eligible for automatic copyright: artistic works, audiovisual works, musical works, literary works and databases. The kind of content created by creators on OnlyFans.com would fall under the category of audiovisual works which includes films and videos. That being said, it must have been created by an individual who is a citizen, domiciled or permanently resident in Malta and the material must have been filmed by them directly. With respect to such copyrighted content the following is prohibited under the Act:

i) the direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part; ii) the rental and lending; iii) the distribution; iv) the translation in other languages including different computer languages; v) the adaptation, the arrangement and any other alteration and the reproduction, distribution, communication, display or performance to the public of the results thereof; vi) the broadcasting or rebroadcasting or the communication to the public or cable transmission; vii) display or performance to the public.

Legally speaking, creators on Onlyfans.com have an action against any person who commits the above infringements using their user content by means of a direct action to the First Hall Civil Court.

The Court may, according to the circumstances of the case, condemn the infringer to the payment of damages to the Creator or to the payment of a hefty fine. The only defence that will save infringers from punishment is to prove to the court that, at the time of the infringement, they were not aware that copyrights subsisted in the work for which the action relates.

However, most creators on Onlyfans write a description on their feed which would include a warning to users not to copy and distribute their material. Therefore, unless such a warning is not present, it would be difficult to prove that at the very least one did not know that such material was owned by creators and should not have been shared.

Regardless of whether one ethically agrees with the creation of sexually explicit content as a business or means of generating revenue, it is not illegal in Malta unless it in any way promotes violent and/or threatening acts or if it includes minors.

Similar terms exist on Onlyfans.com, and therefore creators are bound to stick within certain parameters; sexual content between or featuring consenting adults. Any type of solicitation or advertising of escort services and/or prostitution is also prohibited by the site. It is therefore quite clear that this is legally compliant with some aspects as laid down by Maltese law.

Therefore, if the content is copied, potentially altered or modified, and/or shared publicly the creators who follow these rules may have a claim for the significant loss of revenue which is actionable in Court. There is also the danger of the material being shared into the wrong hands such as minors, which is a criminal offence.

Therefore, a word of warning: an innocent share of the content can lead to some pretty heavy consequences.

Avv Naomi Bugre
Mifsud & Mifsud Advocates
 
This article is available on MaltaToday
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