A Picture’s Worth A Thousand Words – And Maybe A Lawsuit
What do Gigi Hadid, Katy Perry, Nicki Minaj, Ariana Grande, Jennifer Lopez, Khloe Kardashian, and Victoria Beckham have in common? They’re just some of the celebrities, big and small, who’ve been sued for copyright infringement by photographers, often paparazzi, for posting photos on their own social the photographers took of them. Often, this was after the photographers posted the photos themselves.
Why does this keep happening? Because celebrities aren’t, but should be, aware that without a contract to the contrary, or permission from the photographer, copyright law says the photographer owns photos that he or she takes. (And as I’ve said on panels and written about more than once, just because it’s online doesn’t mean you can use it. Someone owns it, and you need permission).
Their lawyers should be telling them this, so they don’t keep getting sued. Why the lawyers don’t is a mystery to me. Copyright infringement litigation is very expensive to defend. And, if the celebrity loses, they not only may have to pay hundreds of thousands of dollars in damages to the photographer, but in some instances, the photographer’s legal fees in addition to theirs!
I believe a lawyer’s main job is to protect their clients, which includes keeping them from being sued. I’ll share how I’ve done this with photos of my influencer and other celebrity clients at the end of this blog.
Here’s some of the defenses these celebrities have raised to try and avoid those expensive damages and legal fees. However, courts differ on when and whether these defenses are viable. None have yet worked in these types of disputes, but may in some of them.
Co-copyright ownership. Copyright law generally says that except when one of two types of contracts exist specifying ownership of a creative work, anyone who contributes to its creation co-owns it.
In Hadid’s lawsuit, she claimed that since she stopped and posed for the paparazzi, she jointly created the photo with the photographer, and so co-owned it. The Copyright Office says copyright law supports that “any positioning of subject” in a photograph contributes to copyright ownership of that photograph. But it will be the judge or jury in Hadid’s lawsuit who decides whether Hadid’s undirected self-positioning makes her a co-author of that photo.
Laws that give a celebrity the exclusive right of publicity in their name and image. Right of publicity is a strong law, but so is copyright. How they intersect and exist in a situation like these, is not yet decided.
Fair use. This is a proven defense to copyright infringement, but it’s complicated to prove. (By the way, it’s urban myth that only using a little of another’s copywritten work is “fair use”. Same for “I only used it for ______. That’s fair, right?” Wrong); and,
An “implied license”. This is an unwritten permission for the celebrity to use a photo, based on whether the conduct of the photographer and celebrity when the picture is taken, shows an intent to grant the celebrity a license to use the photo.
So, how do I keep my celebrity clients from putting themselves in a position to be sued for copyright infringement for posting photos of themselves? Unlike the fair use defense I mentioned above, I don’t think it’s complicated:
- The first time I speak with or meet them, among the first things we discuss, is that they can’t post pictures to their social, or make any other use of them, without the permission of the photographer, or a contract with the photographer saying they can.
- For photos shot to publicize or promote something besides the celebrity, such as a brand, I always try to negotiate for the celebrity’s right to use the photos or videos taken for their personal, non-commercial purposes, including on social.
- If you want photos of yourself at an event, bring your own photographer, and have a written contract with her or him allowing you to freely use, if not own, the photos. This is how Katy Perry got sued for posting a photo a paparazzi took of her at a Halloween event.
- If you want to use a photo shot by paparazzi, tell them you want to, and offer to put their name as the photographer on the photo. If they say yes, someone besides you should hear it, as proof. Better yet, ask them to send you a text or email saying you can.
The takeaway? If you don’t want to see pictures of yourself going in and out of courtrooms, don’t use a photo taken by someone else without their permission or a proper contract. Just sayin”…TM