Paparazzi Lawsuits Against Celebrities: Ongoing Litigation

Posting these photographs onto social media can mean substantial earnings for the celebrity, especially when they have garnered hundreds of thousands or even millions of followers on social media.² Those earnings translate into increased publicity for a celebrity’s career and support for their corporate brand or philanthropic cause.

In 2017 reality show celebrity Khloe Kardashian posted a paparazzo generated photo of herself onto her Instagram account. Xposure Photos, based in the United Kingdom, owned the copyright to the photo and sued Kardashian for $175,000.³ The company accused Kardashian of not asking for permission to reuse the photo. Kardashian deleted the images and the lawsuit was then dismissed. In 2018 Kardashian tweeted that she started requesting licensing permission to repost her own images owned by photographers or media companies.⁴ Her sister, Kim Kardashian, in a tweet, announced that her family would hire photographers to work exclusively for them.⁵ Rather than be accused of infringement, the Kardashian family wanted to be able to control as many of their images as possible.

Increasingly, celebrities are posting copyrighted photos on social media, especially Instagram.⁶ Paparazzi took these photos in public places where celebrities do not have a right to privacy or control their right of publicity, the ability to control how and where their images and names are used for commercial purposes.⁷ When paparazzi capture these images in public places, they have the right to secure them with a copyright or sell them to a media agency, who, in turn, then secures the copyright ownership.

The Copyright Law of 1976, amended numerous times over the years, provides legal protection for any paparazzo who believes his or her copyrighted images have been infringed upon, including by celebrities. The law specifically empowers a photographer with “the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work…”⁸ In the 21^st Century modification can include digitally reposting a duplicate of the original onto a social media site.

This article examines copyright law as it pertains to the paparazzi’s right to obtain legal protection for their creative works especially in social media communication platforms. While their profession may not be universally respected by the public or by many celebrities, it is part of the symbiotic relationship celebrities and paparazzi have with one another.

Social Media Complicates Image Copyright

Social media has impacted the digital photography industry with millions of visuals posted onto various platforms. In 2013 then director of the U.S. Copyright Office, Maria Pallante, wrote in the Columbia Journal of Law and the Arts that more of the general public was affected by copyright than at any previous time in history.⁹ That included liability for online content infringement.¹⁰ She advocated for authors and artists to be able to enforce their legal rights whether their creative works existed “on the street or streamed from the cloud.”¹¹ In 2013 she urged Congress to consider how to enforce “incidental” digital copies of original works in future amendments to the 1976 Copyright Act.¹² She was also concerned about the high cost to photographers for recovery of infringement when they copyright a collection of works under one group registration.¹³ One area Pallante encouraged Congress to reconsider is the idea of an “opt-out system” for creators to disseminate their works.¹⁴ The concept is simple. Authors and other artists would secure copyright but also allow their works to be used by a group of people with prior approval of the artist.¹⁵ Pallante explained how it would operate:

“Extended collective licensing allows representatives of copyright owners and users to mutually agree to negotiate on a collective basis and then to negotiate terms that are binding on all members of the group by operation of law. It has the potential to provide certainty for users and remuneration for copyright owners (for example, in mass digitization activities) but would provide some control to copyright owners wanting to opt out of the arrangement.”¹⁶

She noted that Congress would be the authoritative body to legalize this novel approach of collective licensing.

Generally, it is recognized that obtaining a copyright an image or collection of photos is a straight-forward process. Photographs of celebrities are considered creative expressions under federal copyright law and that ownership can be secured. There are two traditional routes to formally secure copyright. The first is to register the creative expression through the federal copyright office in Washington, D.C. and pay $45 per work.¹⁷ The second, traditional and free way is to add ‘© Name Year’ to the creative expression. According to the United States Copyright Office, photographers own the copyright to their works nearly by default:

The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph.¹⁸

As long as the photographs exist in a tangible medium, copyright law is essentially on the side of the photographer. The United States Copyright Office states tangible mediums are “photographs that are created with a camera and captured in a digital file or other visual medium such as film.”¹⁹ Photographers can submit an individual photograph or an entire work from a series for copyright protection.

Congress is the sole legal authority in United States that writes copyright law.²⁰ The 1976 Copyright Act mandated that creative works be “fixed in any tangible medium of expression.”²¹ Photographs are included as “pictorial” works.²² Any photographer who secures copyright controls those ownership rights for his or her life plus an additional 70 years. Since paparazzi are photographers, they have every legal right to secure their celebrity photos and control how they are viewed by the public. This includes securing the right to reproduction and display.

1884 Supreme Court Decision on Photography and Copyright

In a landmark case regarding whether photography can be copyrighted, the Supreme Court in 1884 in Burrow-Giles Lithography Co. v. Sarony, ruled that the new technology of the time was a form of art deserving of legal protection.²³ While photography in the United States existed as a technology dating back about 40 years prior to this case, this was the first time the Supreme Court heard an appeal by a photographer who accused someone of infringing on his work. Photographer Napolean Sarony created a series of photographs of Irish poet Oscar Wilde in New York City in 1882.²⁴ He published one of them as “Oscar Wilde No. 18” and secured the copyright.²⁵ Burrow-Giles Lithograph Company reused Sarony’s image without permission and infringed on his copyright.

At the time, the lithograph company contended that photography was not part of the creative works eligible for copyright. The Supreme Court disagreed. Writing for a unanimous Court, Justice Samuel Miller stated that photography was not included in 1802 when Congress wrote the first copyright laws simply due to the fact that photography did not yet exist.²⁶ The Court believed photography was an art form in its own right equal to the engravings, music, and prints which Congress added to the list of copyrightable creations in 1831. Justice Miller wrote:

“Unless, therefore, photographs can be distinguished in the classification on this point from the maps, charts, designs, engravings, etchings, cuts, and other prints, it is difficult to see why Congress cannot make them the subject of copyright as well as the others.”²⁷

In the Court’s view, Burrows-Giles was not able to make the argument that photographs were less deserving of copyrights compared with engravings, etchings and other artistic works.

From the Court’s perspective, as a photographer Sarony was just as creative in his profession as an artist with the same attention to detail in setting up his Oscar Wilde photography session:

“…he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression..”²⁸

In acknowledging that photography had a creative element, the Court supported Sarony’s copyright: “We entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.”²⁹ While it supported Sarony’s right to copyright, the Court refused to answer whether photography in the late 19^th century was equal to a piece of art in stature. Instead, the Court focused on how Sarony took great care in preparing and taking his images with special attention to lighting, arrangement of the setting, and striving for an expression by the subject.³⁰

The landmark Burrow-Giles decision provides a parallel to today’s creative landscape where digital photography is often posted onto online social media. In 1884 the Supreme Court clarified the legitimacy of photography as deserving of copyright. The Court defended Sarony’s right to protect his creation. With today’s widespread use of social media, it is equally important for courts to uphold the rights of photographers to protect their digital images from infringement, especially those posted on social media platforms such as Instagram. A simple click of a mouse allows any user to copy an image including those stolen from photographers who secured the copyright. This simple action deprives them of potential revenue from their works.

Supreme Court Clarifies Copyright Law

In order for any photographer to sue for copyright infringement, the photos in question must be registered with the United States Copyright Office. According to the U.S. Supreme Court’s 2019 Fourth Estate Public Benefit Corporation v. Wall-Street.com decision, copyright owners must have their creative works registered before filing legal action against anyone they suspect has infringed upon their creative materials in question.³¹ Simply filing for an application with the U.S. Copyright Office is not enough. The owner must have the completed documented proof of registration provided by the Office.³²

In Fourth Estate, Fourth Estate Public Benefit Corporation, an online news organization, licensed works to Wallstreet.com, a news website. Under the contract between the two companies, Wallstreet.com was required to remove all licensed content upon termination of the business contract.³³ When Wallstreet.com canceled the contract, it continued to post copyrighted materials from Fourth Estate.³⁴ The company contended it had the legal protection for the copyrighted materials simply by submitting the application to the U.S. Copyright Office prior to receiving certification.³⁵ The lower district court dismissed Fourth Estate’s claim ruling the copyright registration was not yet completed at the time the infringement allegedly occurred.³⁶ The U.S. Court of Appeals for the Eleventh Circuit affirmed the decision.³⁷

In Justice Ginsburg’s opinion, the Court was unanimous in stating that before a legal proceeding can be held regarding infringement, registration of the copyright must have taken place.³⁸ This registration is separate from declaring the copyright ownership.³⁹ The Court clarified that registration is needed as the legal proof of copyright provided by the government.⁴⁰ It is only in very limited circumstances, a copyright owner can sue before there is documented ownership:

“If a copyright owner is preparing to distribute a work of a type vulnerable to predistribution infringement—notably, a movie or musical composition—the owner may apply for preregistration.”⁴¹

Yet, even in this unusual circumstance, the Court stated that a preapplication by the creator is still needed even for a “limited review.”⁴² That limited review preregistration is needed so that the “copyright claimant may institute a suit for infringement.”⁴³

Any infringement lawsuit, must have, at a minimum, preregistration before it can proceed.⁴⁴ The Court noted Fourth Estate needed to adhere to this requirement in its action against Wallstreet.com. If Fourth Estate had waited until the preregistration was complete, then its infringement case could have proceeded.⁴⁵ The Court had a warning for any company considering future infringement lawsuits: “An infringement suit brought in reliance on preregistration risks dismissal unless the copyright owner applies for registration promptly after the preregistered work’s publication or infringement.”⁴⁶

The Court, in deferring to Congress’s intent with the federal copyright law, literally interpreted the federal copyright law’s phrase “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration⁴⁷ of the copyright claim has been made..” as the inability to begin a legal complaint or send a cease and desist letter unless the creator has the completed copyright registration.⁴⁸ The Court’s ruling in Fourth Estate reflects its deference to Congress as the governmental branch that writes copyright law.

Copyright also has a First Amendment component. In 2003’s Eldred v. Ashcroft,⁴⁹ Justice Ginsburg, writing for the majority, noted that the Framers of the Constitution believed free expression and the right to secure one’s ideas went hand in hand. The Court’s decision was in regard to the constitutionality of the Copyright Term Extension Act.⁵⁰ Petitioners in Eldred argued that Congress did not have the authority to increase the number of years for an existing copyright.⁵¹ The Court disagreed stating Congress has exclusive authority in all areas of writing copyright law.⁵²

Justice Ginsburg’s opinion reflected the Court majority’s embrace of copyright as a reflection of free expression. She wrote that copyright incentivizes Americans to create and share ideas.⁵³ Copyright allows one to distinguish between ideas and expression.⁵⁴ Creators can share ideas but protect how they express them.⁵⁵ Ginsburg wrote that copyright law serves as an economic incentive to create and share ideas with every American having the right to secure that expression through copyright.⁵⁶

Jennifer Lopez and Kim Kardashian Lawsuits

Actress and singer Jennifer Lopez is a defendant for the second time in a copyright infringement lawsuit. The first case involved a 2017 image owned by Splash News and Picture Agency of her holding hands with fiancé Alex Rodrigues. The lawsuit was terminated by the media company in January 2020. The second and current lawsuit is from Lopez’s action in 2017 when she uploaded a photo to her Instagram page dressed as her NBC Shades of Blue television character “Harley.”⁵⁷ That photo was taken by New York-based photographer Steve Sands.⁵⁸ She shared the photo with her 118 million Instagram followers.

Sands is suing for $115,000 in damages in federal court under section 501 of the U.S. Copyright Act.⁵⁹ Sands alleges that Lopez violated his right to control the reproduction and public display of the photos. He registered the copyright after he took the photos.⁶⁰ The legal complaint uses strong, accusatory language, stating the copyright violation was “willful, intentional, and purposeful.”⁶¹ Sands’ attorney Richard Leibowitz alleges that Lopez used the photo for her own promotion and received more than 650,000 likes from her 118 million Instagram followers.⁶² The complaint also states that Lopez never sought permission from Sands to reuse the photos.⁶³ Sands is seeking information from Lopez regarding how much money she garnered in income or in profits from posting the photo on Instagram.⁶⁴ Any profits Lopez may have earned from the photo may impact any remuneration Sands gets in a successful lawsuit. As the plaintiff, Sands believes his photo had value and Lopez’s actions diminished the potential income he could have earned from it.

The lawsuit against Jennifer Lopez is not unique. It is a textbook case that illustrates the trend in the past couple of years of photographers, especially paparazzi, suing celebrities for copyright infringement. If Sands is successful against Lopez, then as odd as it may seem to celebrities, they would not have an automatic right to re-use images of themselves taken by photographers in public venues.

Parallel to Lopez’s lawsuit, Kim Kardashian was sued in U.S. District Court Eastern District of New York by paparazzo Saeed Bolden for a 2018 repost of a photograph to her Instagram account.⁶⁵ The parties settled their lawsuit in Summer 2020 with each side agreeing to pay its own legal fees. Similar to Sands, Bolden sued under Section 501 of the Copyright Act.⁶⁶ The image in question was of a smiling Kardashian with husband Kanye West. Initially, Bolden sought profits Kardashian may have earned from the social media post as well as seeking punitive damages. Many of Kardashian’s 174 million Instagram followers viewed the photo. Additionally, Bolden claimed Kardashian’s shapewear company Skims Body’s Instagram account is linked to her personal account.⁶⁷ That account is followed by 1.7 million people. He alleged the photo was seen by a combined 2.2 million of Kardashian’s personal Instagram fans and people who follow her business’s Instagram page.⁶⁸ Since the image was registered with the U.S. Copyright Office when the infringement was alleged to have taken place.⁶⁹

In response to this lawsuit, Kardashian posted on Twitter that she hired her own photographer to secure the rights to future photographs: “Btw since the paparazzi agencies won’t allow the fans to repost, all of my pics are taken by my own photog and you guys can always repost whatever you want.”⁷⁰ She encouraged her social media followers to repost those images yet she also noted that in the future other images that are copyrighted would be labeled and not used by her fans to repost, “If I ever post from an agency I will tag them and I have permission. So those please don’t repost!”⁷¹

Bolden is seeking punitive damages for the infringement as well as recovery of his attorney fees from Kardashian.⁷² One of the interesting side notes to both the Lopez and Kardashian lawsuits is that both plaintiffs are represented by the same attorney, Richard Liebowitz. He is a former photographer representing similar clients in several copyright lawsuits. He represents his client Steve Sands in several litigation efforts beyond the Lopez lawsuit.⁷³

Celebrities’ Claim of Fair Use and Right of Publicity

The 1976 Copyright Law included four criteria that allows anyone to use copyrighted materials for fair use under specific circumstances based on: the purpose and character of the use; nature of the copyrighted work; amount of the portion used; and the effect on the copyright owner’s potential market.⁷⁴ In both the Lopez and Kardashian lawsuits, the four-part test can be applied. Both celebrities used the photos for the purpose of promoting themselves on social media to their millions of followers. Dressed in her television character’s police uniform, Jennifer Lopez drew attention to the character she played on Shades of Blue. Kim Kardashian shared a loving smile between her and her husband Kanye West. In both cases the nature of the copyrighted work was a photograph. The third element, the amount or portion used, was the entire image. The photos in question were not cropped or altered in any way. Finally, and perhaps most important element, the effect on a photographer’s economic value can only be determined by a judge or jury. The plaintiffs will most likely have to prove a loss of income from Lopez and Kardashian’s alleged infringement. Both legal complaints seek dollar amounts the two celebrities may have earned from posting the photos on Instagram.⁷⁵

In essence, using the four-part test, photographers Steve Sands and Saeed Bolden seem to be at an advantage in their legal complaints. If they can prove that they lost a substantial amount of money from infringement, they may win their cases. Under this scenario, both Lopez and Kardashian could not claim fair use as a defense even though they are the subjects in each photograph. The fourth part of the fair use test may be the key to determining if infringement occurred. Simply because they were the subject of the photos, Lopez and Kardashian may simply not have rights to them. Another important factor is that the photographs were taken in a public venue where celebrities have few, if any, privacy rights.

A Reverse Right of Publicity

In both the Lopez and Kardashian lawsuits, the celebrities may have believed that since they were the subject of each photograph, they have the right to control their image, the right of publicity. This concept is simple: a celebrity’s right to have his or her image, name or any other likeness used exclusively for commercial purposes with permission.⁷⁶ In this case, both celebrities gave themselves permission to use their images. Typically, right of publicity applies when a media product such as a magazine or newspaper has a photo of an athlete, musician, or actor from a previously published article and then reuses it to promote their product to customers. In these instances, celebrities may sue if they believe their permission was needed for the photograph.

Media often use a First Amendment defense when they argue that the celebrity image itself is not an outright endorsement of their product but rather instead, related to the high quality journalism of the magazine or newspaper.⁷⁷ It is often a fine line between interpreting an outright endorsement by the celebrity versus the celebrity’s image as a reflection of the overall product. In many cases, when a celebrity’s image is used in a profile article, they are asked to sign a consent for future permission to use the image in promoting the media product.⁷⁸

In 2017 NFL star Odell Beckham sued Splash News and Picture Agency and paparazzo Miles Diggs for violating his right to publicity and overall invasion of privacy.⁷⁹ On October 8, 2017 playing for the New York Giants, Beckham suffered an ankle injury and needed surgery. Diggs captured a photograph of Beckham outside his New Jersey home with a telephoto lens. Beckham alleges that the photo was not “creative or distinctive” in any manner⁸⁰ It simply showed his ankle in a cast. By taking this image and licensing it to Splash Media, Beckham accused Diggs of violating both his right of publicity and right of privacy in the form of appropriation.⁸¹

Beckham’s Right of Publicity lawsuit was counter to Splash’s legal action. Beckham had taken the photo in question and posted it on his Instagram site. Splash sought $40,000 in damages.⁸² Both lawsuits were settled between the parties in 2019. Many copyright infringement actions are actually settled out of court for between $10,000 and $20,000.⁸³ The reason is simple. It is less costly to settle these cases than to proceed to court and pay attorney and court fees.⁸⁴ The conclusion that can be drawn from the Beckham, Kardashian and Lopez lawsuits is that paparazzi are becoming emboldened in protecting their financial interests. They believe their photographs have monetary value and as copyrighted materials, are protected under the law from infringement.

Paparazzi Financial Obstacles in Recent Years

Paparazzi income has declined in recent years. According to Los Angeles paparazzo Giles Harrison, his income has decreased significantly in the last decade. In some cases, he earns as much as 50 percent less in any one week selling his celebrity images than he did a decade ago.⁸⁵ Other paparazzi have retired and left the business due to declining income. One of the reasons why their photographs have decreased in value is that there is a smaller group of celebrities whose photos earns a significant amount of money. Competition for the photos is now more intense. The value of any image rises and diminishes according to who is popular in the entertainment industry at any given time. This inconsistency makes it difficult for any paparazzo to estimate their long-term income.

Another important factor is the use of social media by celebrities to control their own image. Rather than rely on photographers to communicate the visuals, celebrities now have millions of followers on their social media sites. Essentially, they no longer need paparazzi to act as the middlemen to communicate with their fans. If a celebrity wants to make a personal or professional announcement, they simply do it themselves. Celebrities’ public Instagram, Facebook or Twitter accounts are used by media to download these photos. Cable Channels such as E! and programs such as Entertainment Tonight and Good Morning America use these social media accounts to produce stories for their viewers. Websites such as People.com and Daily Mail Online rely more on celebrity sourced photos rather than those generated by paparazzi. The main exception is TMZ who deploys an entire staff of photographers in Los Angeles and New York City. It considers itself a celebrity focused news operation.⁸⁶

In addition to the economic challenges faced by paparazzi, California’s well-known anti-paparazzi laws have caused paparazzi to be more careful in how they gather their photos. In California, it is illegal for them to intrude on a celebrity’s family’s privacy or to stalk them in order to get that priceless photo.⁸⁷ Paparazzi and media organizations can be sued for publishing photos if a celebrity has asked in writing to cease and desist their activities.⁸⁸

The last major challenge for paparazzi working in today’s media environment is the Covid 19 outbreak. With the recent state government imposed stay at home orders in California and New York, fewer celebrities are walking around in public and there have not been any movie premieres or charity functions for them to attend. Paparazzi have far fewer opportunities to snap photos.

Conclusion

Given the economic and legal challenges to gathering celebrity images, it is not surprising that photographers, including paparazzi, are suing celebrities for infringement. The images have a monetary value to both the celebrity and the photographer. While celebrities usually have a stable source of income, photographers do not. If their visuals are used without permission and financial compensation, it is not surprising that they would seek remuneration. Any photograph of a celebrity has monetary value. Copyright law provides a financial means to recover infringement.⁸⁹

Even though celebrities were the subjects in the photographs, courts may determine they infringed on photographers’ copyright. Fundamentally, celebrities infringing on paparazzi sourced photos is no different than any other copyright violation such as illegally downloading music. Copyright applies to photography as much as any other creative expression. One possible solution for celebrities to avoid lawsuits is to link their Instagram or Twitter accounts to a photographer’s website by posting the website URL if the visual exists on a public site.⁹⁰ By linking to the photographer’s website or social media account, the celebrity is not actively infringing or copying a digital photograph. Rather, it is a form of fair use.⁹¹ The celebrity would not be uploading the digital file and storing it on their computer, tablet, or cell phone.⁹²

If celebrities continue copying and pasting images without permission of the owner, then lawsuits will continue. Being the subject of the photograph is not enough of a right to infringe. Photographers have a right to copyright their creations. That right is stated explicitly in the 1976 Copyright Act where the creator controls any “modification” of their creation.⁹³ That right includes the digital copying and pasting of an original work with attribution given to the photographer.

Endnotes

1. Kelly-Leigh Cooper, Why Celebrities are being sued over images of themselves, BBC NEWS, (February 6, 2019), http://www.bbc.com/news/world-us-canada-47128788.

2. Id.

3. Xposure Photos UK Ltd. V. Khloe Kardashian et al. No. 2:2017cv03088, (S.D.N.Y. filed April 25, 2017).

4. Khloe Kardashian @khloekardashian, TWITTER (August 19, 2018, 6:05 PM), https://twitter.com/khloekardashian/status/1031301266910015488?lang=en.

5. Kim Kardashian @KimKardashian, TWITTER (February 6, 2019, 9:59 PM), https://twitter.com/kimkardashian/status/1093343487335059458?lang=en.

6. TFL, From Bella and Gigi Hadid and Goop to Virgil Abloh and Marc Jacobs: A Running List of Paparazzi Copyright Suits thefashionlaw.com, (February 21, 2020), https://www.thefashionlaw.com/from-bella-and-gigi-hadid-and-goop-to-virgil-abloh-and-marc-jacobs-a-running-list-of-paparazzi-copyright-suits/.

7. Robert Trager, Susan Dente Ross and Amy Reynolds, THE LAW OF JOURNALISM AND MASS COMMUNICATION 241 (2018).

8. 17 U.S. Code §106(a)(2) (2020).

9. Maria A. Pallante, The Next Great Copyright Act, 36 COLUM. J. L. & ARTS 315, 323 (2013).

10. Id.

11. Id.

12. Id. at 326.

13. Id. at 328.

14. Id. at 338.

15. Id.

16. Id.

17. United States Copyright Office, FEES, (2020) https://www.copyright.gov/about/fees.html.

18. United States Copyright Office, CAN I USE SOMEONE ELSE’S WORK? CAN SOMEONE ELSE USE MINE? (2020) https://www.copyright.gov/help/faq/faq-fairuse.html

19. United States Copyright Office, PHOTOGRAPHS, (2020) https://www.copyright.gov/registration/photographs/

20. U.S. CONST. art. I §8, cl. 8. Congress has the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

21. 17 U.S. Code §101 (2020).

22. Id.

23. 111 U.S. 53 (1884).

24. Id. at 54.

25. Id.

26. Id. at 57.

27. Id.

28. Id. at 55.

29. Id. at 58.

30. Id. at 55.

31. 139 S. Ct. 881 (2019). Author’s italics

32. Id. at 888.

33. Id. at 887.

34. Id.

35. Id.

36. Id.

37. Id.

38. Id.

39. Id.

40. Id. at 888.

41. Id.

42. Id.

43. Id.

44. Id.

45. Id.

46. Id.

47. Author’s italics

48. In the decision, Justice Ginsburg referred directly to the copyright statute, 17 U. S. C. §411(a) (2019) that explicitly explained the process for securing copyright.

49. 537 U.S. 186 (2003).

50. Pub. L. 105-298, §§ 102(b) (1998). Congress amended the 1976 Copyright Act to increase copyright duration from life of the creator plus 50 years to life of the creator plus 70 years.

51. Supra note 49 at 193.

52. Id. at 194.

53. Id. at 219.

54. Id.

55. Id. Author’s italics.

56. Id.

57. Chelsea Ritschel, Jennifer Lopez sued for $150K by photographer over Instagram photo, INDEPENDENT, (April 21, 2020), https://www.independent.co.uk/life-style/jennifer-lopez-sued-copyright-infringement-photographer-instagram-lawsuit-a9477236.html

58. Steve Sands v. Jennifer Lopez and Nuyorican Productions, Inc. No. 1:20-cv-3126 (S.D.N.Y. filed April 20, 2020). According to the complaint, the photographs in question have the Copyright Registration Number VA 2-066-844.

59. Id.

60. Id. at 2.

61. Id. at 3.

62. Id.

63. Id.

64. Id. at 4.

65. Kim Kardashian Sued That’s a Sweet Shot of You & Kanye ... But Ya Stole it From ME!!!, TMZ, (January 23, 2020), https://www.tmz.com/2020/01/23/kim-kardashian-lawsuit-photo-kanye-west-instagram-skims/

66. Saeed Bolden v. Skim Bodies, Inc. and Kim Kardashian, No. 2:20-cv-365, (E.D.N.Y. Filed January 22, 2020).

67. Id.

68. Id. at 3.

69. Id. at 2.

70. Kim Kardashian @KimKardashian, TWITTER (February 6, 2019, 9:59 PM), https://twitter.com/kimkardashian/status/1093343487335059458?lang=en.

71. Id.

72. Id. at 4.

73. Ashley Cullins. Has This Man Sued You? A “Copyright Troll” Takes on Hollywood, THE HOLLYWOOD REPORTER, (April 6, 2018), https://www.hollywoodreporter.com/thr-esq/has-man-sued-you-a-copyright-troll-takes-hollywood-1099156

74. 17 US Code §107 (2020).

75. See Steve Sands v. Jennifer Lopez and Nuyorican Productions, Inc., No. 1:20-cv-3126 (S.D.N.Y. filed April 20, 2020). and Saeed Bolden v. Skim Bodies, Inc. and Kim Kardashian, No. 2:20-cv-365, (E.D.N.Y. filed January 22, 2020).

76. Robert Trager, Susan Dente Ross and Amy Reynolds, THE LAW OF JOURNALISM AND MASS COMMUNICATION 242 (2018).

77. Id. at 252.

78. Id.

79. Odell Beckham Jr. v. Splash News Picture Agency and Miles Diggs, No. 2:18-cv-01001-JTM-JCW (E.D. La. filed February 18, 2018).

80. Id.

81. Id.

82. Id.

83. Rihanna’s Fenty Corp. is Being Sued Over a Paparazzi Photo … Again, THEFASHIONLAW.COM, (December 30, 2019), https://www.thefashionlaw.com/rihannas-fenty-corp-is-being-sued-over-a-paparazzi-photo-again/

84. Id.

85. Giles Harrison (owner, London Entertainment Group and paparazzo) in discussion with author, April 2018.

86. Nicholas Schmidle, The Digital Dirt: How TMZ Gets the Videos and Photos that Celebrities Want to Hide, THE NEW YORKER, (February 22, 2013), http://www.newyorker.com/magazine/2016/02/22/inside-harvey-levins-tmz.

87. CAL CIV CODE §1708.8 (2020) is California’s Invasion of Privacy Law. CAL CIV CODE §1708.7 (2020) is California’s anti-harassment law.

88. CAL CIV CODE §1708.8 (1) (d) (2020).

89. 17 U.S. Code §504(c)(2) (2020).

90. Ashley Packard, DIGITAL MEDIA LAW, 189 (2013).

91. Id.

92. Id.

93. 17 US Code §106(A)(a)(3)(a) (2020).