By: Meredith Wallen
What is the harm in taking photographs of yourself that have been taken by someone else and then posting those photographs to your own personal Instagram page or other social media platform? Well if you are Katy Perry, Gigi Hadid, Jennifer Lopez or a number of other celebrities, it could cost you $150,000 per photograph. Katy Perry dressed as Hillary Clinton for Halloween in 2016, and later posted a photograph taken by the paparazzi to her Instagram page. Perry failed to pay the paparazzi agency to license the photograph and failed to give credit to the agency.
This is an ongoing issue in the entertainment industry, with multiple celebrities facing copyright infringement lawsuits for using the photographs that have been taken of them by the paparazzi and posting the photographs on their personal social media pages without paying or giving credit to the copyright holders.
Copyright law grants the copyright owner the exclusive right to reproduce, distribute, or publish the protected work. The official page for the United States Copyright Office states that the “mission of the Copyright Office is to promote creativity by administering and sustaining an effective national copyright system.” The primary purpose behind the copyright system is to promote creativity in society by giving those individuals that choose to create art the security of knowing that what they create will be protected and not able to be reproduced or republished without proper compensation to the artist or the artist’s prior consent.
The United States Copyright Office’s functions include, but are not limited to the administering of copyright law and creating and maintaining a public record through registration of claims and recordation of documents. Photographs and photographic negatives were added to protected works under copyright law on March 3, 1865. It is much harder to regulate the reproduction or publication of photographs now than it was years ago because of the accessibility factor. Social media platforms such as Instagram and Twitter make it much easier to take a photo off of one page and repost it to your own personal page, without ever having to acknowledge or give credit to who holds the copyright for the original photograph.
Paparazzi agencies are continuing to bring more suits against celebrities, and the celebrities are typically settling with the rights holders, which means that most of the suits never make it past preliminary motions. Model Gigi Hadid has dealt with her fair share of copyright infringement lawsuits when it comes to reposting photographs to her social media. Recently the photo agency Xclusive-Lee filed a copyright infringement suit against Hadid in the Eastern District of New York. Xclusive-Lee’s complaint highlighted that Hadid has had a prior suit brought against her for copyright infringement with the hope that this evidence could show that Hadid was aware she was unable to use a photo of herself taken by a member of the paparazzi community without gaining prior consent or compensating the photographer. Hadid has previously settled when sued over copyright infringement; however, with this suit Hadid and her attorney raised the Fair-Use Doctrine under Section 107 of the Copyright Act in their motion to dismiss.
Section 107 of the Copyright Act states that “the fair use of a copyrighted work,” and here that would be the plaintiff’s photograph of the celebrity, “including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news, reporting, teaching, scholarship, or research is not an infringement of copyright.” One factor to be considered in determining whether the use made of a work in any particular case is a fair use is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes. The photograph of Hadid is clearly more of a commercial nature rather than nonprofit or educational purpose. However, Hadid is claiming that she had made no effort to commercially exploit the photograph, but rather the photographer’s intent in taking the photograph “was to commercially exploit Hadid’s popularity.” This is a risky argument for a celebrity to make considering they are typically exploiting themselves when they are choosing to interact with the public and are themselves boosting their popularity through the use of these photographs on their social media platforms, which makes these photographs of them more desired and of “newsworthy” material to the public.
The other factors in play when considering the Fair-Use Doctrine are the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The affected use in regard to celebrities republishing these photographs of themselves without paying or even giving credit to the photographers, could substantially affect the potential market for or value of the copyrighted work. These photographers are being compensated for the capturing of these celebrities’ image by selling the photographs to different social media or news outlets, so if the photographers are not being compensated for or to the extent that they should be, these photographers could in turn lose the incentive to take the photographs which would substantially affect the market for these types of photographs.
Hadid’s argument focused on the first element of § 107, “purpose and character of the use.” Courts tend to look to what extent the work is transformative, which is the extent the new work alters the original work with new expression, meaning or message when analyzing the purpose and character. Hadid argued that her posting the photograph of herself on Instagram is transformative because the nature of her use was social and not commercial like the intention of the paparazzi. The reposting of the same photograph, even if a filter or different caption is added to the photograph, is most likely not transformative regardless of the change in purpose of commercial to social. Hadid also made the argument that her posing for the photographer created an implied license between the photographer and herself. If this policy was adopted, photographers would certainly suffer a direct economic loss because the need of purchasing photographs would be essentially obliterated if all it took was an implied license that could be gained by what is considered “posing for the camera.”
An argument can be made that celebrities are not directly gaining from an economic sense when posting these photographs of themselves on their personal pages; however, their profiles are being boosted and can indirectly lead to an economic boost with each new post. One example of this is a lawsuit against Ariana Grande for posting two photographs taken by a New York-based paparazzo who captured Grande carrying a bag that read “Sweetener.” The photographer alleged that his photographs of Grande were used by Grande to promote her then soon-to-be-released album of the same name. On the other side of that same argument is would be that these are photographs of the individual being sued and these celebrities are without a doubt being exploited for commercial purposes.
Celebrities can attempt to argue the defense right of publicity which grants an individual the right to control and profit from commercial use of their name or likeness, but it does not grant the right to inhibit the First Amendment right. New York law takes into account the “newsworthiness” and “public interest” factors when considering the right of publicity defense. Courts will typically rule that when photos are taken in a public place and are of a “newsworthy” subject (i.e. a famous popstar), the photographer has copyright ownership. Regardless of the outcome for each celebrity, whether it be by a private settlement or a motion to dismiss including a fair-use defense, this is an ongoing issue that will most likely end with a bright line rule of law needing to be established in an effort to minimize the amount of copyright infringement suits coming forward.
A Brief Introduction and History, United States Copyright Office (Nov. 4, 2019), https://www.copyright.gov/circs/circ1a.html.
Amy Ralph Mudge, Randal M. Shaheen, Alan L. Friel and Linda A. Goldstein, Gigi Hadid “Obliterates” Copyrights With Fair-Use Bazooka, Lexology (June 28, 2019), https://www.lexology.com/library/detail.aspx?g=e162b58c-9e96-4857-8505-5b58042af129.
Copyright Act of 1976 § 101, 17 U.S.C. § 106 (2019).
Copyright Act of 1976 § 101, 17 U.S.C. § 107 (2019).
Legal Entertainment, Ariana Grande Hit With Lawsuit For Posting Paparazzi Photo Of Herself, Forbes (May 14, 2019), https://www.forbes.com/sites/legalentertainment/2019/05/14/ariana-grande-hit-with-lawsuit-for-posting-paparazzi-photo-of-herself/#3ddcd6ff4f39.
Ken Shepherd, Khloe Kardashian sued by paparazzi photo agency for $175k for sharing copyrighted photo on Instagram, Washington Times (April 27, 2017), https://www.washingtontimes.com/news/2017/apr/27/khloe-kardashian-sued-photographer-violating-copyr/.
Maria Puente, Jennifer Lopez sued by paparazzi agency for copyright infringement, USA Today (Oct 7, 2019), https://www.usatoday.com/story/entertainment/celebrities/2019/10/07/jennifer-lopez-sued-paparazzi-copyright-infringement/3900908002/.
Quinn D’Isa, Gigi Hadid, Paparazzi, and The Intersection of Copyright Laws and Fair Use on Social Media, (2019), http://www.fordhamiplj.org/2019/09/25/gigi-hadid-paparazzi-and-the-intersection-of-copyright-laws-and-fair-use-on-social-media/ (last visited Nov 4, 2019).