Breaking copyright is obviously wrong regardless of whether it is enforced or not - and therefore not a very interesting thing to debate. Contrary to sexualchoc and a few others I do not judge and do not sit on a high horse playing white knight, but the topic of legality isn't very interesting to debate since it is so crystal clear.
The only possible exception to copyright here would be Fair Use, but that requires a LOT of criteria to be met, and it is a difficult area of gray shades to navigate at best.
The interesting thing for me is WHY copyrights so rarely are enforced within the porn industries. Not out of relevance, but out of curiosity. Other industries enforce copyrights a LOT harder, and I think I know why. Other industries can advertise and promote their products more or less freely, over a wide variety of arenas and different media. The porn industry cannot. Therefore, as seraph has pointed out before as well, the willingness for partnership and cooperation is much greater in that business since they have so much fewer arenas on which to advertise their content. Which is also why it is not only impractical to pursue copyright infringement, it is also in many cases, especially here on this site, counterproductive to their own goals.
Again, not relevant to the legality at all, merely very interesting.
Also, Fair Use should be delved into more detailed here, since it is very likely that at least some of the creative content made here on milovana easily could qualify to reuse otherwise copyrighted material under the Fair Use clause (
http://en.wikipedia.org/wiki/Fair_use)
Fair Use is an exception to copyrights, where copyrighted material can be used without prior permission of any kind, but for the law to apply, several criteria must be met:
1. Purpose and character of the use
This part pretty much deals with upholding the original intention of copyright, meaning the reused work cannot be of a nature where it competes with the original, reused work economically or creatively.
The criteria is clearly met by webteases, since they are neither commercial in any way, nor competes with the image galleries creatively. It is a new artwork in a completely different direction than the original material, and that is precisely what Fair Use is intended to make possible.
2. The nature of the copied work.
This deals with copyright validity between fictional vs. non-fictional content, as well as whether content must have been published in other to be copyrighted.
Not relevant for neither the content we're debating here, nor the validity of Fair Use in this case at all.
3. Amount and substantiality
This deals with the amount of reused content vs. how much new creative content the author brings to the table him/herself. In short, the less reused material compared to the additional, new creative content, the better in terms of fair use.
For webteases, the images make up a clear minority of the total creative content, in fact the images don't bring any significant creative content to the table at all.
4. Effect upon the original work's value
The reuse must not remove the ability of the original owner to exploit their original work.
As far as I can see, webteases do not do that, if anything they do the exact opposite.
One other consideration that has to be made, primarily by seraph0x of course, is whether the site would WANT to claim Fair Use of content even if we legally could. Even of you DO qualify legally to claim Fair Use, it will undoubtedly step on some toes now and then and potentially be challenged legally as well.
The important thing and purpose for me with bringing this up at all is to adjust the great number of people who live in a black and white idea of copyright being absolute and the owner of any work having absolute rights to that content in every single way. That is simply legally not true, and that's the main drive for me to put this forward.
/ 