https://orcid.org/0000-0003-2388-4796
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ABSTRACT
Adult content creators’ copyright is undermined in the profitable, gig economy, porn industry. From an analysis of the terms of use on the ManyVids, Chaturbate, OnlyFans and Pornhub porn platforms, the results show such creators have no bargaining power vis-à-vis online platforms. Although they create pornographic content, the copyrightability of their works is obscured because the recognition of their authorship is often a smokescreen. This is because, under the terms of use, they are forced to perpetually transfer their economic rights to online platforms without royalties in exchange as well as waiving their moral rights. By using Radin’s pragmatist feminist methodology, we suspend any critique of the goodness or badness of pornography in order to unveil the double bind that adult content creators working in the gig economy face in the context of UK copyright law.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 ‘Pornhub Statistics’, 2017. https://www.pornhub.com/press. Accessed 1 October 2021.
2 The market share of adult and pornographic websites in the USA reached USD 1.1 billion in 2023, with an annualized growth of 12.6%. See ‘Adult and Pornographic Websites in the US, Market Size 2005–2028’. https://www.ibisworld.com/industry-statistics/market-size/adult-pornographic-websites-united-states/. Accessed 22 February 2023.
3 ‘Pornhub Insights’, 2019. https://www.pornhub.com/insights/2019-year-in-review. Accessed 2 October 2021.
4 We do not engage with child pornography and revenge porn, which are crimes of sexual exploitation and abuse and thus require condemnation. We also do not engage with extreme pornography beyond what is necessary to indicate the subjective nature of obscenity. Although legislators define the aforementioned crimes with the term pornography, such a label is problematic precisely because the production of pornography is legal in the UK, and the association of criminal activity with the word pornography might imply that pornography itself is illegal and that such crimes could be tolerated within its industry. Naming criminal activities that are lewd in nature as pornography, which is legal, would be not only semantically incorrect but also jurisprudentially wrong. Although society’s understanding of morality might change over time, these activities should remain strictly illegal and would most likely continue to be immoral.
5 All content was collected and analyzed by the authors with ethical clearance from the University of Reading.
6 Obscene Publication Act 1959, section 4 (1); and Indecent Displays (Control) Act 1981, section 1 (1).
7 ManyVids, Terms for Uploaders, 2.3 and 4.1-4, https://info.manyvids.com/home/terms-uploaders (accessed 11 June 2023); Chaturbate, V. 5-8, https://chaturbate.com/terms/ (accessed 11 June 2023); OnlyFans, Terms of Use for Creators 5-12, https://onlyfans.com/terms (accessed 11 June 2023); and Pornhub, https://www.pornhub.com/information/terms (accessed 11 June 2023).
8 ‘Mime’, Oxford English Dictionary, https://www.oed.com/view/Entry/118635?rskey=FR4FDe&result=1# (accessed 24 June 2021).
9 Norowzian v Arks Ltd (No 2) [2000] FSR 363.
10 Designers Guild Ltd v Russel Williams (Textiles) Ltd [2000] 1 WLR 2416.
11 Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569 [39].
12 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273.
13 Feist Publications, Inc., v. Rural Telephone Service Co. [1991] 499 U.S. 340.
14 See earlier note 9.
15 Baigent and Lee v Random House Group Ltd [2007] FSR 579.
16 Glyn v Weston Feature Films [1916] 1 Ch. 261.
17 Hyde Park v Yelland [2001] Ch. 143.
18 Hyde Park v Yelland, para. 66.
19 R v Peacock (unreported, Southwark Crown Court, 6 January 2012).
20 Obscene Publications Act, section 2.
21 Obscene Publications Act, section 1. These are the persons ‘likely … to read, see or hear the matter contained or embodied in it' (section 2). As for online pornographic works, it is literally everyone.
22 Obscene Publications Act, section 1.
23 Perrin [2002] EWCA Crim 747.
24 See earlier note 20 at section 2 (5).
25 See earlier note 21.
26 Penguin Books Ltd [1961] Crim LR 176.
27 Whyte [1972] 3 All ER 12.
28 Anderson [1972] 1 QB 304.
29 Digital Economy Act 2017, section 14.
30 European Convention on Human Rights, article 10 (2).
31 R v Brown [1993] UKHL 19.
32 ManyVids, Terms for the Uploaders, 2.6
33 Uber BV and others v Aslam and others Hilary Term [2021] UKSC 5 on appeal from [2018] EWCA Civ 2748.
34 ManyVids, Terms for Uploaders 3.3-3.12, https://info.manyvids.com/home/terms-uploaders (accessed 11 June 2023), Chaturbate, V.6-7, VI2-3, https://chaturbate.com/terms/ (accessed 11 June 2023); OnlyFans, Terms of Use for Creators, 10, https://onlyfans.com/terms (accessed 11 June 2023); Pornhub, https://www.pornhub.com/information/terms (accessed 11 June 2023).
35 See note 35.
36 For instance, OnlyFans allow ACCs to retain copyright ownership as what has been transferred is only a non-exclusive licence which does not prevent ACCs from granting non-exclusive licences to others for the same content. This, however, does not suggest that there are no problems with the terms of use. OnlyFans, 10.b.
37 See earlier note 35.
38 Chaturbate, VI2, https://chaturbate.com/terms/ (accessed 11 June 2023); ManyVids, Terms for Uploaders, 3.5, 3.6, https://info.manyvids.com/home/terms-uploaders (accessed 11 June 2023); OnlyFans, Terms of Use for Creators 10.c, https://onlyfans.com/terms (accessed 11 June 2023); Pornhub, https://www.pornhub.com/information/terms (accessed 11 June 2023).
39 See note 39.
40 See earlier note 35.
41 See earlier note 35.
42 See Football Dataco Ltd v Yahoo! UK Ltd Case, C-604/10 (2013) FSR 1.
43 Chaturbate, V, VI2, https://chaturbate.com/terms/ (accessed 11 June 2023); ManyVids, Terms for Uploaders 3.5, https://info.manyvids.com/home/terms-uploaders (accessed 11 June 2023); OnlyFans, Terms of Use for Creators 6, 9, 10c, https://onlyfans.com/terms (accessed 11 June 2023).
44 See note 44.
45 OnlyFans, DMCA Takedown Policy.
46 See also Society of Composers, Authors and Music Publishers of Canada v Canadian Association of Internet Providers (2004) 2 SCR 427.