The Feud between Paparazzi and Celebrities Continues
This post is guest authored by Bronte Story, a rising third-year law student at SMU Dedman School of Law. Bronte is one of our summer legal interns here at Maddrey PLLC, and we are happy to present this article. As always, I have reviewed this post for its legal and factual conclusions – Madeleine Shroyer
Paparazzi v. Celebrities
Conflicts continue between the paparazzi and celebrities as more and more celebrities face the threat of litigation. Most Instagram users do not think twice when posting a photo of themselves taken perhaps by a friend or even a stranger on the street. However, celebrities have to make these considerations. These precautions are due to recent claims of copyright infringement. Celebrities such as Ariana Grande, Gigi Hadid, Khloe Kardashian and others have all faced intellectual property claims against them for copyright infringement after posting photos taken by members of the paparazzi on their personal Instagram accounts.
Under U.S. copyright law, an author of a work has an exclusive “bundle of rights,” which includes the right to display, reproduce, license, and distribute his or her work. These rights accrue the instant a work is created. Someone who did not create the work, then, must license the work from the author in order to take advantage of that bundle of rights. This means that when someone from the paparazzi takes a photograph of a famous person, the paparazzi photographer owns the rights to that photograph. This photograph is in no way owned by the subject of the photo. The only way to use the photograph is to obtain a license.
Let’s look at an example. Popstar Ariana Grande recently found herself in a heap of trouble when photographer Robert Barbera sued her for copyright infringement in May 2019. Last summer, Grande had posted a photo of herself on Instagram that was taken by Barbera. In this photograph, Grande, who is sporting an oversized sweatshirt, exits a building while holding a bag bearing the word “Sweetener,” which is the name of her album that was soon to be released. Barbera is seeking “either the profits that Grande earned from the post, or $25,000 in damages for each photo.”
The photographer’s argument? Grande neither asked permission to post the photograph nor did she credit him anywhere in the post. Even though Grande is the subject of the photograph, the photographer still owns the legal rights in the image.
Grande is not the only one who’s been caught up in this type of legal debacle. In January 2019, supermodel Gigi Hadid faced a similar situation when she was sued by a New York-based company, Xclusive-Lee, after she posted a photo of herself on Instagram that had been taken by Xclusive-Lee.
Hadid bounced back with the argument that her posting of the photo was “fair use.” The fair use defense under copyright law considers four factors including (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to copyrighted work as a whole, and (4) the effect of the use on market for or value of the copyrighted work. Here, Hadid argues that her use of the photo was fair use because it was not commercial in nature, the photo was not staged in a studio, the photo had Hadid as the focus with few other artistic elements to it, and the use of the photo did not negatively affect Xclusive-Lee’s profit. Further, Hadid argues that she made her own contribution to the photo because when she posted it, she cropped it to make herself, her smile, and her pose the focus of the photograph over any of its other aspects. Still, Xclusive-Lee maintains that it took the photograph and therefore, owns the photograph based on longstanding principles of copyright law. Although Hadid’s lawyers are seeking to have the case dismissed, under copyright law Hadid has infringed, and whether or not her use is considered fair use will have to be determined by a court of law.
Celebrities Jessica Simpson and Jennifer Lopez have also faced lawsuits when they posted photos taken by paparazzi on their social media profiles. Most recently, singer / rapper Nicki Minaj was sued for copyright infringement for posting seven paparazzi photos of herself on Instagram that she neither licensed nor had permission to use.
Celebrities may try to argue their right of publicity protects them from copyright infringement in these cases. A celebrity’s right of publicity is the right to control the use of his / her name and image. This, though, must be weighed with the freedom of the press to report on things that are newsworthy, including celebrity news. Moreover, the right of publicity does not negate the exclusive rights that an artist has under copyright law.
Is It Fair Use
The biggest debate revolving around this slew of lawsuits is whether or not these photos are fair use.
One may wonder how a company or photographer can sue a person for copyright infringement if the photograph is of that person. However, under copyright law, that kind of legal action is completely warranted. It is a longstanding notion of copyright law that the individual who captures the photo owns the copyright; it has never been granted to the person who is the subject of the photo, unless expressly part of a contract.
In addition, if a court were to find that a paparazzi photo of a celebrity is factual in nature and not creative, it may be considered fair use. However, it would mean that any photograph taken this way would be deemed the same, barely providing protection for photographers in future cases. Furthermore, like Hadid, some celebrities are claiming they are co-authors of the work in an effort to get out of copyright infringement litigation. In Hadid’s case, the supermodel argues she was a co-author of the photo because she stopped, posed, and smiled for the shot, which gave her an implied license to use the photo. However, if being the subject of a photo is all it takes to be considered a co-author or have an implied license to a photograph, it would practically annihilate all protections for photographers taking photos of any person in any given scenario.
Let’s look at that again – if being the subject of a photo is all it takes to be considered a co-author or have an implied license to a photograph, it would practically annihilate all protections for photographers taking photos of any person in any given scenario. This would fundamentally affect the legal rights of creatives, specifically photographers, and have sweeping implications on copyright law.
Most people probably think it is odd that a celebrity could not post a photo of themselves on their own social media accounts, even if the photo is taken by someone else. However, if a court ever determined that subjects of these paparazzi photos did have certain rights to display and reproduce these photos, it could have major implications on copyright law and prior fair use precedent.
About the Author
Madeleine Shroyer is our firm’s rising expert on fashion and non-profit law. During her law school career at SMU, Madeleine interned at a boutique law firm, which taught her the importance of teamwork and effective communication.
Learn more about Madeleine Schroyer HERE.