Celebrities are used to having their photographs taken. And paparazzi are used to taking celebrity photographs. There’s always been a push and pull between the celebrity and the paparazzi. Some of their issues, such as privacy rights, stalking, and harassment issues are generally sorted out. What is still being sorted out between celebrities and paparazzi in this age of social media is what rights do celebrities have to their image, and how does that relate to the rights of the photographers who take photographs of these celebrities. In the past year, several lawsuits have been filed which examine the specific question:
Can celebrities be sued for reposting images of themselves on social media?
While the legal answer to this question is still evolving through the various court cases filed, it is clear the celebrities who appear in the photos, and the photographers who take the photos, are at odds. While celebrities claim right to publicity, the photographers claim loss of income due to the appropriation by celebrities of their copyrighted works.
United States copyright law protects original works of authorship fixed in any tangible medium of expression. In other words, as soon as a photographer snaps a photo fixing a digital or film image that photographer has created an original work of authorship entitled to protection under the United States Copyright Act. Once fixed, the photographers copyrights include the exclusive right to reproduce and distribute the work to the public.
Many celebrities retain control of their own social media platforms. Larger name celebrities are sometimes followed by tens of millions of people on these sites. As American fashion model Gigi Hadid is finding out, reposting an image of yourself to a social media platform, like Instagram, can have some unintended legal consequences.
In a recent suit filed against Hadid, a New York paparazzi operating under the business name Xclusive-Lee, Inc. (Xclusive-Lee, Inc. v. Jelena Nourga “Gigi” Hadid, Eastern District of NY, Case No. 19-cv-520), complains that Hadid copied and uploaded a photograph taken of Hadid by Xclusive-Lee to Hadid’s publicly available Instagram account without license or permission from Xclusive-Lee.
Hadid, who removed the picture from her page days after uploading it, has now responded in the case filing a pre-motion letter asking the judge to throw out the lawsuit, which Hadid characterizes as merely an effort to “extract” money from her. The pre-motion letter argues that the paparazzi already exploit Hadid’s image for profit on a day-to-day basis, photographing her every move, and it is disingenuous to now demand damages based on a social media post made by the person whose fame and image the paparazzi sought to exploit in the first place. Further, the pre-motion letter argues, among other thing, that Hadid had an implied license to use the photograph as she “permitted the photographer to take a photograph of her and, by posing, contributed to the photograph’s protectable elements.” Hadid concludes that from this interaction “a license can, and should, be implied permitting Hadid to use the photograph—at least in ways that do not interfere with the photographer’s ability to profit.”
Hadid is not the first celebrity to have to defend themselves against this type of copyright infringement claim. Other social media A-listers such as Khloe Kardashian and Odell Beckham Jr., have been sued for republishing photographs taken of them. Celebrities, like Hadid, argue in defense that the public is interested in them and their image, so they should maintain some control over how and when their image is used.
Photographers, on the other hand, maintain that when celebrities post, re-post, or share a photographer’s original work without license or consent, the photos are no longer “exclusive” and lose most of their value in the paparazzi market.
Outside the US, laws tend to favor celebrities regarding control of how their names and photos are being used in the public. However, in the US, the law of rightful ownership of a celebrity to their image is not as clear, resulting in most of these cases, like those against Hadid, being settled outside of court.
We will continue to monitor developments in this area of copyright law since social media, the internet, and technology will continue to affect authors of original creative works; and, celebrities will continue to exploit social media, the internet, and technology to stay relevant and successful. We expect cases, like those against Hadid, will become more prevalent until the law reaches a balance between a celebrity’s right to publicity in their own image, and a photographer’s right to reproduce and distribute original works depicting celebrities.
The Lomnitzer Law Firm focuses on all aspects of intellectual property as well as entertainment law. If you have a matter regarding these concerns, we would be happy to meet with you. Contact us through our website form to schedule your free consultation.