Are Celebrities Guilty of Copyright Infringement for Posting a Paparazzi’s Photos?
To the average person, it may seem natural to assume that a picture taken of a celebrity belongs to the celebrity. In fact, it is common for celebrities to complain about and sometimes sue paparazzi for invading their privacy by taking photos of them. On the other side of the coin, some paparazzi are suing celebrities for copyright infringement when the subjects use the photos in which they appear without permission. The photographers argue they own the copyright to their photos and therefore no one else can use them without their consent, including the individuals depicted in the photo. The rise of social media has made this issue increasingly relevant as stars regularly post photographers’ photos on their accounts, often without asking for permission.
Who Owns a Photograph?
Generally, under U.S. copyright law, the person who “authored” a work is the copyright owner. In this context, a photographer who takes a picture of a celebrity would be the creator of the work and would therefore own the rights to the image. Such exclusive rights reserved for authors include the sole right to use, reproduce, distribute, display, prepare derivative works, sell and license the work. Anyone else who wants to use the photo must get permission from the rights holder. That includes the person depicted in the image. While celebrities may have rights to their appearance under other laws, they do not have the right to use the photo if they don’t own or license the copyright for it.
Are Celebrities Joint Authors of the Photograph?
Some celebrities have argued that they have rights to photographs of them because they are “joint authors.” Under copyright law, eligible contributors to otherwise protectible works may have certain rights, including the ability to publicly display the work. They claim that because they cooperated with the photographer and posed for the picture, they’ve established themselves as a co-creator. However, courts generally have rejected this argument.
Does a Photographer Need Permission to Take a Photo of an Individual?
Under right of privacy laws, celebrities and private individuals are protected from being photographed without their permission in a location where they have a reasonable expectation of privacy. However, photographers can take photos of individuals in public places without permission.
Although a photographer can photograph someone on the street, they may be limited in the use of that photo. Individuals may have a right of publicity, which allows them to control their image, name or any other likeness used for commercial purposes. For example, the photographer may not be able to use the image to promote or advertise a product or company. Merely selling the photo to someone else may not qualify as a “commercial purpose.” However, right of publicity laws vary by state.
Can I Post a Photo of Myself on Social Media That Is Owned by Someone Else?
Individuals can post images of themselves taken by someone else if they have permission. However, in some instances, they may be able to do so without permission. One defense to a claim of copyright infringement is fair use. An individual can use a copyrighted work for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research without getting permission from the owner of the original work. Courts weigh the following four factors in determining whether the use is a fair use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. Section 107.
Typically, the cases involving celebrities involve use of the photo for commercial purposes – that is, to promote their image and/or activities (movies, products, etc.). They are also using the entire work (the photo), not a portion of it. As a result, the key issue is often how the use affects the market for the photographer’s work. The photographer must show some damage caused by the illegal use of their photography. Paparazzi argue they make their money from selling their images to media outlets, but when celebrities post those same images, those outlets are less interested in the photos.
Where a private, non-public-figure individual wants to use his or her own photo taken by someone else, the same factors apply, but the result may turn on different issues than with celebrities.
If you are a public figure and want to post a picture taken by the paparazzi, you should consider whether you have permission to post said picture. Although it is frustrating to not own the copyright in one’s own image, posting without permission will only lead to more headache as it could lead to legal liability. Best practice for anyone seeking to use an image they did not take is to consult an attorney with experience in copyright law before posting. If your images have been unlawfully used by someone else, an attorney can assist you in enforcing your rights. Contact Romano Law for a consultation.
This Blog is made available by Romano Law PLLC for general informational and educational purposes only, not to provide specific legal advice. By using this Blog you understand that there is no attorney client relationship between you and Romano Law PLLC or any individual contributor. You should consult a licensed professional attorney for individual advice regarding your own situation.