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Sample Language To Prevent Dissemination of Intimate Photo's and Video's
Question (by e-mail): IDEAS TO PROTECT CLIENTS FROM USE OF PRIVATE PHOTO’S When couples divorce, lawyers often use boilerplate releases and other general language in their property settlement agreements in an effort to end as much future litigation as possible. But where one or both of the spouses have intimate photographs and videos of the other, there should be special planning to assure the protection of the client from future dissemination of the materials and ensuing embarrassment. First of all, if there is the potential of this type of situation, general releases should not be given, and certain protections should be written into the agreement in order to prevent later dissemination. There should also be provisions calling for recovery of damages, injunctive relief, and contempt should dissemination take place in violation of the agreement and order approving the agreement. There are a number of issues that should be researched, such as: 1) Who owns the copyrights to these photographs and videos. 2) Does the malicious dissemination of even truthful information may constitute defamation in your state? 3) Not being a public person, can the wronged spouse assert that his/her right to privacy is being violated by the dissemination? 4) Will "outrage" or "intentional infliction of emotional distress" apply? 5) Does the Internet Service Provider that chooses to post such materials without consent have responsibility? With this in mind, the following clauses might be of assistance to lawyers who handle matrimonial cases, but caution is urged that lawyers research these issues in their jurisdiction before relying on these materials: Husband and Wife acknowledge that during their marriage, certain photographs, video tapes, audio tapes, and/or other materials of an intimate and personal nature were made and/or collected. In this regard, Husband affirmatively states that all such materials in his possession, including all negatives and all copies, have either been destroyed or returned to Wife. Wife affirmatively states that all such materials in her possession, including all negatives and all copies, have either been destroyed or returned to Husband. Both parties affirmatively represent that neither has retained any such materials. Should any such materials be later found or discovered, such materials and all copies thereof shall be immediately sealed and delivered to the party depicted in such materials. Both Husband and Wife are restrained and strictly enjoined from showing any such materials publicly, privately, or in any type of format or environment. Husband and Wife each acknowledge that the person or persons depicted in any such materials owns/own the copyright to said materials, and agree that dissemination or use of such materials shall amount to not only infringement of copyright, but also invasion of privacy and the tort of outrage/intentional infliction of emotional distress which shall be actionable in an action at law or equity and shall include the right to both temporary restraining orders and injunctive relief. In this regard, Husband and Wife agree that should either of them or their agents violate any disclosure provisions of this agreement and the order approving this agreement, the minimum damages due to the harmed party shall be Fifty Thousand Dollars ($50,000). In furtherance of their good faith representations herein, Husband and Wife each confess to judgment hereby in the minimum sum of $50,000 should either violate the terms hereof. NOTICE The foregoing materials and information were either written and copyrighted by Flying Solo® or contributed to Flying Solo by professionals who have licensed their materials to Flying Solo. These materials are not intended either as a substitute for advice from an attorney or as an attempt to answer all questions about the specific situations you may encounter. Because all situations are different, because the law of each state varies, and because you may have questions that are not covered in these materials, we urge you not to rely on this material as legal advice and not to make decisions without the advice of an experienced family law attorney whom you should consult for appropriate advice about your specific legal questions. These materials are provided as is, without warranty of any kind, either expressed or implied. Ó1998 Flying Solo®. All rights reserved. This material may not be reproduced in whole or in part in any form without the express written permission of Flying Solo®, PO Box 11704, Columbia, South Carolina 29211. Email janwarner@flyingsolo.com. Flying Solo® is a registered trademark.
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