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  • Paul I. Menes

Copyright Infringement May Now Be “Embedded” In Your Posts

Updated: Jan 13, 2022

How insane is this? Influencers and other celebrities keep getting sued for copyright infringement for posting pictures and videos of themselves on their social. (Dua Lipa is the latest victim).

The reason they get sued is because they don’t own the picture just because they’re its subject. The person who took it (usually some paparazzo) owns it, because they created the photo. So, permission from the photographer is necessary for the celebrity to post it. Without that permission, it’s copyright infringement. (I’ve written before about this here).

This basically means that a celebrity who has their picture or video taken, whether they’re aware of it being taken or not, has no control over it or how it’s used (!)

Paparazzi spend time trolling online to find unsuspecting infringers of their photos and videos. Since the value of the infringed use can be hard to prove, a paparazzo often takes advantage of the U.S. Copyright Act’s provisions for what are called “statutory damages”. These are money damages set by law. The paparazzo doesn’t have to prove any actual damages.

If the infringement is “willful” (which intentionally embedding content usually is), statutory damages could cost the celebrity up to $150,000 in damages per infringement, plus the paparazzo’s legal fees and costs.

No wonder there are so many of these lawsuits. They’re worth more than the photos or videos, which per the Hollywood Reporter, can usually be licensed for a couple hundred bucks.

One much used workaround was to embed the picture or video on the celebrity’s social, not actually repost it there. (For those unfamiliar with embedding, it’s making online content immediately available on a site, without having to click on it or a link to see or hear it. It’s done by invisibly linking back to the third party site where that content originated. Embedding doesn’t create or store an additional copy of the content on the embedder’s site, server, or computer).

Unfortunately, that workaround is quickly going away, due to some new court decisions. These decisions state that there’s basically no difference between embedding and actually posting the content on a site, because they both serve to “display” (one of the exclusive copyright rights that a copyright owner has) the content. The existing law these decisions are changing is called the “server rule”. It says that it isn’t infringement if the content embedded on a site remained on the site or server where it was hosted.

So, what’s an influencer or celebrity to do if they want to post a picture or video of themselves that someone else took? I provided some guidance in my prior blogs on this subject, including in the one linked above, but here’s a short summary:

  • Get the photographer’s permission before you post. If you can’t get it, don’t post.

  • Giving the content creator attribution doesn’t protect you.

  • Don’t rely on your posting of someone else’s content being a “fair use”. It’s a massively misunderstood concept. It’s not fair use because it’s a picture or video of you, you found it online somewhere, you didn’t use that much of it, or you otherwise believe it’s “fair”. Fair used is a defense to copyright infringement one can try to use when they get sued (which of course you want to avoid).

  • If you’re aware the unplanned picture or video is about to be taken of you, pose for it or otherwise contribute to its creation. It could give you co-ownership of it, and one can’t infringe a copyright they co-own.

  • If you’ve arranged to have a photo or video shoot, get permission in writing before the shoot that you can repost it, or otherwise make the uses of it you want. It can be as simple as the photographer texting you that you can.

The takeaway? If you don’t want to see pictures and videos of yourself going in and out of courtrooms, don’t use a photo, video, or other content created by someone else without their provable permission. Just Sayin”… TM

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