New Copyright Issues with Paparazzi and Social Media

Social Media, Celebrities, and Paparazzi Bring New Attention to Copyright Issues

In an October 30, 2019 article for IP Watchdog.com, Meaghan Kent, Katherine Dearing, and Danae Tinelli highlight some legal issues gaining new attention from a spate of copyright infringement cases involving celebrities, social media, and paparazzi. Many issues remain unresolved because the lawsuits were settled out of court or dismissed for procedural reasons. However, taking a closer look at them may help photographers understand their rights and how to enforce them.

At the heart of recent cases filed by photographers against celebrities is a celebrity’s right of publicity using their image and a photographer’s right to copyright their work. Defendants in copyright infringement cases recently have included Gigi Hadid, Jennifer Lopez, Victoria Beckham, Justin Bieber, and Khloe Kardashian. Most of them involve the defendant posting a photo of themselves on Instagram. The pictures in question were taken by paparazzi who allege the postings violate copyright law. In these cases, the photographers claim:

  • they own the copyrights to these pictures
  • they have the exclusive rights to use and distribute them
  • they gave no permission for their use

 

Does a Celebrity Have an Implied License?

An implied license can exist. Courts have ruled that a license does not have to be in writing but can be verbal and implied from conduct. Courts differ as to what it takes to demonstrate an implied license exists. Still, they agree that it “requires that an alleged infringer demonstrates that even without an express verbal or written agreement, the parties’ conduct indicates an intent to grant a license.”

The court might consider:

  • Whether the potential licensee requested the creation of the work
  • Whether the photographer created the work and delivered it to the licensee
  • Whether the photographer intended the licensee to distribute the work

If you are a celebrity, is stopping for a photographer a “request” to have your picture taken?
Does a photographer give implied consent to use the photograph when he or she posts it on social media? Is this a form of “delivering” it to the licensee? IN a recent copyright infringement case involving Gigi Hadid, the court did not have a chance to rule on this issue.

It is important to note that cases involving the implied license defense are very fact-specific.

 

Does a Celebrity Co-Author a Photo by Posing?

It is widely accepted that “the positioning of a subject of a photograph contributes to copyright ownership in a photograph.” When there is a sufficient contribution, the work may be a “joint” work. The Copyright Act defines a joint work as one “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary work.”

In the case of paparazzi photographing celebrities, does the subject independently striking a pose satisfy the standard of Co-authorship? Is co-ownership established by the simple act of stopping, smiling, or otherwise posing for the camera? If you are a photographer and you ask your subject’s opinion about the lighting, background, or pose, are you endangering your rights?

 

Can a Celebrity Copyright a Pose?

Theoretically, yes. But this is a strict standard to meet. It is not likely that a pose will be unique enough for a celebrity to claim that it establishes copyright ownership in a photograph.

The Copyright Office will not extend protection to “commonplace movement or gestures,” or “ordinary motor activities and athletic movements.”

A model who claims he or she posed in such a unique way that it establishes ownership over your photograph is unlikely to have a successful defense in court.

 

What Does This Mean For Photographers?

The rise of social media has taken copyright law to a new level. The legal issues above have yet to be examined closely in federal court. However, the rules about copyright remain the same. The laws have not changed. They are simply being applied to new situations. The goal of copyright law is also the same; to give creative professionals control over their work and the right to earn a living from their art.

Contact our copyright infringement lawyers at the Liebowitz Law Firm, PLLC, for a free consultation. Our lawyers are dedicated to protecting the rights of photographers around the world. Call us today at 800-778-1660.

 

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