Can Copyright Law Protect People from Sexual Harassment?

By Lee, Edward | Emory Law Journal, January 1, 2020 | Go to article overview

Can Copyright Law Protect People from Sexual Harassment?


Lee, Edward, Emory Law Journal


Introduction

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.1 Eventually, more than ninety women in the entertainment industry accused Weinstein of sexual harassment or, in some cases, sexual assault.8 In February 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 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. …

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