Can Copyright Law Protect People from Sexual Harassment?
| Publication year | 2020 |
Can Copyright Law Protect People from Sexual Harassment?
Edward Lee
The scandals stemming from the sexual harassment allegedly committed by Harvey Weinstein, Roger Ailes, Les Moonves, Matt Lauer, Bill O'Reilly, Charlie Rose, Bryan Singer, Kevin Spacey, and many other prominent figures in the creative industries show the ineffectiveness of Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment in the workplace, in protecting artists and others in the creative industries. Among other deficiencies, Title VII does not protect independent contractors and limits recovery to, at most, $300,000 in compensatory and punitive damages. Since many people who work in the creative industries, including the top actors, do so as independent contractors, Title VII offers them no protection at all. Even for employees, Title VH's cap on damages diminishes, to a virtual null, the law's deterrence of powerful figures in the creative industries—some of whom earned $300,000 in less than a week. Not surprisingly, many of the accused harassers in Hollywood had no shortage of funds to pay "hush money" to their accusers, yet allegedly continued to sexually harass people for years. In an original survey of over 670 alleged incidents of sexual harassment, this Article analyzes the problem of sexual harassment in the creative industries—and the insidious role copyrighted works often played in facilitating a harasser's ability to carry out and continue the harassment or retaliation. This Article proposes a new way to address sexual harassment in the creative industries: enact federal legislation that prohibits sexual harassment in the development of works of authorship that receive federal copyrights. The proposed legislation is modeled on Title IX's prohibition of sex discrimination in educational institutions that receive federal funding— which carries, potentially, the ultimate penalty of the loss of federal funding for educational institutions that violate Title IX. Similarly, the proposed federal
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legislation authorizes a court to order the forfeiture of copyright for any work that has the requisite nexus to the sexual harassment or retaliation, if the violation was willful or wanton. A court-appointed trustee will oversee the copyright in the best interests of the public and the innocent individuals who participated in the development of the underlying work. The work would remain copyrighted for the remainder of the term, but the copyright would no longer be owned by the harasser or any entity complicit in the harassment.
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On October 5, 2017, Ashley Judd alleged in a New York Times ("NYT") article that Harvey Weinstein, the powerful Hollywood movie producer with a litany of successful movies to his name, had sexually harassed her in the late 1990s.1 For the first time, Judd publicly identified the Hollywood mogul whom she had accused of sexual harassment, without naming, in a Variety interview two years earlier.2 During the alleged incident, which occurred when Judd was an aspiring actress, Weinstein invited her to his hotel room under the pretense of discussing future starring roles in his movies in order to sexually harass her.3 Eight other women hoping to break into Hollywood alleged, in the same NYT report, that Weinstein sexually harassed them in a period spanning three decades; Weinstein allegedly used the same false pretense of inviting each woman to meet in his hotel room for work-related reasons to discuss roles in movies or future productions, which was merely a pretext he used to sexually harass them.4 On the same day of the NYT article, Weinstein issued a public apology, acknowledging that his past conduct "has caused a lot pain," but he said he grew up "in the '60s and '70s, when all the rules about behavior and workplaces were different."5 The Weinstein company fired Weinstein three days later.6
Within a week of the report, thirteen additional women made similar allegations of sexual harassment against Weinstein in The New Yorker.7 Eventually, more than ninety women in the entertainment industry accused Weinstein of sexual harassment or, in some cases, sexual assault.8 In February
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2020, a jury in New York state court found Weinstein guilty of criminal sexual assault of Miriam Haley, a former production assistant, and of third degree rape of Jessica Mann, a former aspiring actress, but acquitted him of predatory sexual assault.9 Weinstein still faces another criminal case in California state court for rape and sexual assault involving two other women.10 Beyond these lawsuits, dozens of women have accused Weinstein of sexual harassment, sexual assault, or other inappropriate advances. The list includes prominent actresses reaching the highest echelon of Hollywood (e.g., Angelina Jolie, Heather Graham, Salma Hayek, Rose McGowan, Gwyneth Paltrow, Annabella Sciorra, Mira Sorvino, and Uma Thurman), some whose careers, along with Judd's, allegedly suffered due to Weinstein's retaliation after they rebuffed him.11
Ten days after the NYT article, actress and activist Alyssa Milano tweeted a plea—or rallying cry—to other women: "If you've been sexually harassed or assaulted write 'me too' as a reply to this tweet."12 The tweet contained an image stating: "Suggested by a friend: if all the women who have been sexually harassed or assaulted wrote 'me too' as a status, we might give people a sense of the magnitude of the problem."13 The tweet used the phrase "Me Too" that Tarana Burke, an advocate for survivors of sexual violence, had coined in 2007 to raise awareness of the issue.14 By the next morning, Milano's tweet went viral, generating 53,000 replies, with thousands of women sharing their experiences of being sexually harassed, assaulted, and even raped.15 By the end of 2017, the hashtag #MeToo had been used in eighty-five countries on Twitter and in over
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85 million posts on Facebook.16 #MeToo had become an international movement.17
Numerous women, men, and transgender individuals from all walks of life shared their experiences in being sexually harassed or assaulted. For the arts, entertainment, modeling, music, TV, and other creative industries (collectively, "creative industries"),18 Judd's allegations against Weinstein opened the floodgates. Scores of people came forward to allege they were sexually harassed, not just by Weinstein, but also by many other well-known people in the creative industries. By one tally through December 2018, 158 prominent figures in these industries had been accused of sexual harassment—some of the alleged perpetrators harassed numerous people over many years in patterns that were predatory.19 Each of the major broadcast networks had one of its top commentators or talk show hosts leave in complete disgrace after allegations they had engaged in repeated acts of sexual harassment: Mark Halperin of ABC, Matt Lauer of NBC, Bill O'Reilly of Fox, and Charlie Rose of CBS.20 CBS even fired its highly successful CEO Les Moonves due to sexual harassment claims by at least twelve women.21 Fox News CEO Roger Ailes met a similar fate after former Fox News anchor Gretchen Carlson filed a sexual harassment lawsuit against Ailes (which, due to his contract, exposed Fox to liability);22 at least twenty other women at Fox, including Megyn Kelly, also alleged that Ailes had sexually harassed them.23 These men were among the most powerful in the TV industry—and among the most egregious alleged sexual harassers.
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Often, the alleged sexual harassment was accompanied by retaliation against the victims that stunted their careers. For example, in Judd's lawsuit against Weinstein,24 a federal court ruled that her claims of defamation and unfair business practice were allowed to proceed25 based on director Peter Jackson's revelation that Miramax (then controlled by Weinstein) had told Jackson not to cast Judd in The Lord of the Rings, produced by Weinstein, because she was "a nightmare to work with and we should avoid [her] at all costs."26 Jackson, who was not aware of Weinstein's alleged sexual harassment of Judd at the time, took Miramax's negative recommendation and removed Judd from the casting list of The Lord of the Rings,27 which went on to win seventeen Oscars and earn $970 million at the box office in each of its trilogy of movies.28 After Judd's revelation to the NYT, Jackson said he believed Weinstein gave him "false information" about Judd in a smear campaign.29 By every measure, not being cast in The Lord of the Rings was a colossal loss for Judd's career.
The disturbing revelations in the Weinstein scandal, along with the allegations of sexual harassment against many other prominent individuals in the #MeToo era, have raised urgent calls for "real change" to address sexual harassment.30 Some of the proposed reforms include: (1) invalidating confidentiality or non-disclosure agreements, negotiated as a part of a settlement
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of a potential lawsuit, that prohibit a person who claims to have been sexually harassed from revealing it,31 as well as reforms requiring corporations to disclose such settlements;32 (2) companies voluntarily adopting broader policies and definitions of sexual harassment than the exceedingly narrow standard set by federal law;33 (3) allowing shareholder actions against corporate fiduciaries for breach of their fiduciary duty and violations of federal securities law for failing to address widespread sexual harassment in a corporation;34 (4) invalidating the exclusivity of arbitration to handle sexual harassment claims required by many employment contracts;35 and (5) expanding sexual harassment protections for employees to independent contractors.36
These proposals are worthy of consideration. California and a few states have enacted some of these reforms.37 Yet most of the reforms have three major shortcomings...
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