Infringement on Instagram

For many years, celebrity photographers, known as paparazzi, have been criticized for the invasive methods they often use to take “priceless” photos that invade the privacy of celebrities and their family members. However, in recent years, the paparazzi have fought back against their critics by seeking to enforce their copyrights in their artistic works. Regardless of their sometimes unscrupulous tactics, copyright protection gives paparazzi an incentive to create the artistic works so many people consume. Social media use, including use of the popular app Instagram, has led to a wave of lawsuits brought by paparazzi against celebrities sharing the photographs.

Indeed, celebrities Khloe Kardashian, Ariana Grande, Gigi Hadid, Jennifer Lopez, Jessica Simpson, Victoria Beckham, Odell Beckham, Nicki Minaj, and Justin Bieber have been sued for copyright infringement for posting paparazzi photos (of themselves) to their social media accounts, without the license or permission of the photographer. The plaintiffs in these suits, typically photographers or agencies, argue that as the holder of the copyright to the photographs, they have the exclusive right to reproduce, distribute, display, or license the copyrighted work, regardless of whether the subject of the photo consents to the images. The rise in these suits demonstrates an often overlooked intersection of the entertainer’s right of publicity in his or her own image and the photographer’s right to copyright the photograph.

The Fair Use Defense

Section 107 of the Copyright Act sets forth four factors a court must weigh in deciding if the celebrity’s use of the copyrighted work constitutes fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use on the potential market.

In Xclusive-Lee v. Hadid, model Gigi Hadid was sued after sharing a paparazzi photo with her millions of Instagram followers. In response to the lawsuit, rather than seeking a quick settlement as she had done in a prior suit, Hadid had had enough of the paparazzi and fought back with a motion to dismiss.

Unfortunately, the Xclusive-Lee suit was dismissed because of the plaintiff’s failure to register the copyright prior to filing suit. Thus, the court did not reach the substantive issue of a celebrity’s right to control how others profit from the celebrity’s likeness.

The Implied License Defense

Nonexclusive licenses do not have to be in writing and may be verbal or implied from conduct. See 17 U.S.C. § 101. A celebrity defendant may argue that he or she has an implied license to use the photo, even without an express agreement, based on the parties’ conduct. Courts differ on the requirements for establishing this defense, which involves a fact-intensive inquiry. To establish this defense, a defendant must demonstrate permissive intent on the creator’s part, which is likely difficult for celebrities in paparazzi lawsuits to do. In the Xclusive-Lee suit, the defendant argued that she permitted the paparazzi to photograph her, posed, and thus contributed to the protectable elements of the work. The court did not address this argument in granting her motion to dismiss.

Striking a Balance

Rights of publicity differ from state to state but generally give individuals the ability to control the commercial value of their name, likeness, voice, signature, or other personal identifying traits. Many states recognize that everyone has a right of publicity, but some states recognize only the rights for celebrities. For celebrities, their identity can be a huge asset, worth millions or, in some cases, billions of dollars.

Ashley J. Heilprin is an associate in the New Orleans, Louisiana, office of Phelps Dunbar, LLP.

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