In the age of social media, the issue of who owns a photograph has become increasingly relevant, particularly when it comes to photographs of celebrities. Many celebrities have assumed that they own pictures taken of them. That false assumption has proved costly in some cases. Under U.S. copyright law, the person who “authored” a work is the copyright owner. This means that the photographer, not the celebrity whose picture is taken, owns the rights to the image.
The Copyright Act grants creators (i.e., “authors”) several exclusive rights, including the right to use, reproduce, distribute, display or perform, prepare derivative works, sell and license the work. Anyone else who wants to use the photo must get permission from the rights holder, including 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 to it.
Some celebrities have argued that they have rights to photographs of them because they are “joint authors.” A joint author requires the intent of the parties to collaborate. Celebrities have maintained that because they cooperated with the photographer and posed for the picture, they’ve established themselves as a co-creator. Courts generally have rejected this argument.
Under right of privacy laws, celebrities and ordinary individuals are protected from being photographed without their permission in a location where they have a reasonable expectation of privacy, such as in their homes. 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. Public figures typically 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. There is no federal right of publicity and state laws vary from state to state.
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, which requires an analysis of four factors under Section 107 of the Copyright Act, including how much of the work is used and whether its being used for commercial or non-commercial purposes.
Typically, cases involving celebrities involve the 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. And because paparazzi make their livelihood by licensing celebrity snapshots, a celebrity’s use of a photo of themselves is often not deemed to be a fair use.
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 the photo. 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. They can advise you on whether you have a valid claim for copyright infringement, and if so, what legal remedies are available to you. At Romano Law, our team of experienced copyright attorneys can help you navigate the complex legal landscape of copyright law and enforce your rights. Contact us today for a consultation.