When It Comes to Posting Your Photos, Ask Permission, Not Forgiveness.
There’s a theory to which my sweetheart subscribes: “Ask forgiveness, not permission”. While I generally agree, it doesn’t apply to influencers and other celebrities posting photos of themselves that someone else takes.
A federal court recently threw out a lawsuit against influencer/supermodel Gigi Hadid, for posting to Instagram a photo of herself taken by a paparazzo. The paparazzo claimed because he took the picture, he owned its copyright, and sued Hadid for copyright infringement.
(The main reason the court threw out the lawsuit was because the paparazzo failed to register the photo with the U.S. Copyright Office. Registration is a prerequisite to filing a copyright infringement suit).
The point here is that lawsuit had the potential to be an important decision for influencers and other celebrities. Had the paparazzo registered the photo for copyright, the suit wouldn’t have been tossed, and the court would have had to decide if Hadid’s posting was or wasn’t copyright infringement. As the Hollywood Reporter wrote, the court would have had to clarify a celebrity’s “right to control how others profit from [that celebrity’s] likeness”, and address a “battle that involves a copyright law written before the dawn of the internet, before legislators could imagine social phenomena like Instagram’s billion users and hundreds of millions of daily photo uploads.”
Celebrities of all types are sued all the time for copyright infringement by paparazzi and other photographers for posting photos of themselves to social. Katy Perry, Nicki Minaj, Ariana Grande, Jennifer Lopez, Khloe Kardashian, and Victoria Beckham are some others. The celebrity usually loses or settles with the photographer. In Hadid’s case, the paparazzi claimed Hadid had violated his copyright in a photo of herself when she posted it to social, despite the fact that Hadid had arguably contributed to creating the photo (multiple people who create an original work, like a photo, usually jointly own its copyright), by posing for the photo, selecting what she’s wearing in it, and cropping the photo for posting.
The Hadid lawsuit could have also clarified the often misunderstood legal theory of “fair use” (“well, it’s a picture of me, so I can use it”, “I only used a little of it, so that’s fair”, or the famous “I only used it for ______. That’s fair, right?” Wrong).
Many influencers and other celebrities think fair use protects them from using someone else’s work without permission or payment. (Giving attribution to the creator isn’t enough). What constitutes a work’s creator also isn’t always clear. That clarity could protect celebrities from copyright infringement liability for posting photos of themselves to social taken by paparazzi or other professional photographers.
Hopefully, the lack of fair use clarity, especially involving celebrities posting those types of photos of themselves, will spark the type of legal rethinking needed when old school rules don’t accommodate new realities.
The takeaway? Until that happens, influencers and other celebrities need to protect themselves from infringement claims over their photos. A writing with the photographer is needed, clearly setting out who owns the image (just the photographer or co-ownership with the subject). If only the photographer owns it, permission in advance is necessary for the celebrity to post it on any social – even the subject’s. This permission will usually be granted for free, as long as the posting isn’t for purposes of directly monetizing the photo.
Copyright infringement is hard to defend in court (not to mention super expensive). And infringers can have to pay six-figure monetary damages to the creators, and their attorneys’ fees.
So, don’t count on forgiveness.
Just Sayin’ … TM #influencerlawyer, #influencerlaw, #influencers, #postingphotos, #justsayin, #paparazzilaw, #reposting, #copyrightlaw, #paparazzolaw, #posting, #digitalmedialaw, #digitalmedialawyer, #photolaw, #digitallaw, #digitallawyer
Paul I. Menes
The Influencer Lawyer ®
(c) 2021 Paul I. Menes