When It Comes To Posting Your Photos, Ask Permission, Not Forgiveness
There’s a theory to which my girlfriend subscribes: “Ask forgiveness, not permission”. While I generally agree, it doesn’t apply to posting photos of you someone else takes.
Recently, a federal court threw out a lawsuit against influencer and supermodel Gigi Hadid, for posting to Instagram a photo of herself that was taken by a paparazzo. The paparazzo was claiming because he took the picture, he owned the copyright in it and had sued Hadid for copyright infringement.
The reason the court dismissed the lawsuit was simple: the paparazzo failed to register the photo with the U.S. Copyright Office. Registration is a prerequisite to filing an infringement suit. (Registration also has several other important benefits for owners of creative works. I previously posted about why creators need to register for copyright ASAP here).
This lawsuit had the potential to be an important decision for influencers and other celebrities. Had the paparazzo complied with the copyright registration process, the suit wouldn’t have been dismissed, and the court would have to decide if Hadid’s posting was or wasn’t copyright infringement. The court would have had to, as the Hollywood Reporter wrote, clarify a celebrity’s “right to control how others profit from [that celebrity’s] likeness”, and address a “battle that involves a copyright law written before the dawn of the internet, before legislators could imagine social phenomena like Instagram’s billion users and hundreds of millions of daily photo uploads.”
Celebrities of all types are sued all the time by paparazzi and other photographers for posting photos of themselves to social. In this Hadid case, the paparazzi claimed Hadid had violated his copyright in a photo of herself when she posted it to social, despite the fact that Hadid had arguably contributed to creating the photo (those who create an original work, like a photo, usually own its copyright), by smiling for the photo, selecting what she’s wearing in it, and cropping the photo for posting.
The lawsuit had the potential to test and clarify the often misunderstood legal theory of “fair use”, which many influencers and other celebrities think protects them from using someone else’s work without permission or payment (giving attribution to a creator isn’t enough), as well as what constitutes a creator of a work. That clarity could protect celebrities from copyright infringement liability for posting photos of themselves to social taken by paparazzi or other professional photographers.
Although “fair use” and other potential non-infringement theories weren’t dealt with by this court, “it’s an imminent fight that could spark the type of legal rethinking needed when the old rules fail to accommodate new realities.”
So, until that happens protect yourself from infringement claims over photos. Have clear writing with the photographer, setting out who owns the image (just the photographer or co-ownership with the subject), and if only the photographer owns it, get permission in advance to post it on social. This permission will usually be granted for free, as long as the posting isn’t for purposes of directly monetizing the photo.
Copyright infringement is hard to defend in court (not to mention expensive). And infringers can have to pay six-figure monetary damages to the creators, and their attorney’ fees. Don’t count on forgiveness.
Just sayin’ … TM