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If You Are a Celebrity, These May Not Be the Days of Your Lives After All

Melissa Lynne Watt and Raika Casey

If You Are a Celebrity, These May Not Be the Days of Your Lives After All
Urilux via iStock

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A federal court in California may have the opportunity to weigh in on whether celebrities have the right to share paparazzi photos of themselves on social media.

“Days of Our Lives” and “Real Housewives of Beverly Hills” star Lisa Rinna recently decided to share a day of her life with her more than 2.7 million Instagram followers. She posted eight photos on Instagram of herself and her two adult daughters. The paparazzi took the photos in public locations. There was just one problem: the photos were copyrighted, and Ms. Rinna did not have the owners’ permission to post them. 

After Ms. Rinna shared the photos, one of Hollywood’s largest celebrity-photography agencies, BlackGrid, sued Ms. Rinna for copyright infringement alleging $1.2 million in damages. By sharing the photos, BlackGrid alleges she hurt its chances of selling the photos because Ms. Rinna’s millions of Instagram followers already saw them. BlackGrid argues that under the US Copyright Act, the right to share and distribute those photos of Ms. Rinna and her family lies exclusively with the copyright owner—the photographer. Not Ms. Rinna.

Rinna Fights Back

In an October filing, Ms. Rinna answered BlackGrid’s claims by stating that BlackGrid has “weaponized” the US Copyright Act to augment its income (and the income of its affiliated photographers, commonly referred to as ‘paparazzi’) during and because of the COVID-19 pandemic.” Ms. Rinna points out that although BlackGrid has filed nearly 50 copyright infringement cases in the last four years, they filed roughly two-thirds of those cases in 2020 and 2021. Her amended answer further alleges that the lawsuit against her is “trolling,” stating that BlackGrid’s practice is merely seeking a novel source of revenue for their photos: first, capture candid celebrity photos (i.e., the bait) and then sue any celebrity that takes the bait and posts the photos without permission.

Do Celebrities Own Their Own Image?

Celebrities being sued for posting photos of themselves may seem nonsensical. Celebrities live a life primarily based on profiting from their image—other people should not be allowed to take photos of them without their consent and profit from the photos. Those photos only hold value because of the independent grit, effort, and success of the celebrity. While the value of paparazzi photos has decreased over time, the value of social media posts has soared astronomically. The shift in the balance of power between celebrities and the paparazzi results in some agencies suing for their share of the proceeds, as Ms. Rinna has aptly pointed out, seeking a novel source of income. The surge of the value of social media posts and the ability for celebrities to reproduce and distribute images to millions of people has thrown the norms of copyright law into limbo.

Copyright Law Is on the Photographer’s Side—For Now

No matter how absurd it may seem that celebrities do not have the right to use photographs of themselves, especially those taken in public without their consent, the US Copyright Act likely favors BlackGrid as the owner of a copyrighted work distributed without permission. Under the US Copyright Act, the owner of a copyright has the exclusive right to reproduce, distribute, and, in the case of certain works, publicly perform or display the work. The law views a photograph as an “original work[] of authorship,” the same as a painting or a book.

Ms. Rinna’s response underscores this idea that paparazzi photos hold value because of the celebrity being photographed, arguing that Ms. Rinna receives an implied license to use photos of herself taken by paparazzi. In short, Ms. Rinna’s position is that, since the photographers target celebrities to make money from such photos, an implied license is created: “It is only because of Ms. Rinna’s hard work, dedication to her craft and resultant success that her image confers monetary benefits on the Plaintiff,” the amended answer says. “Having taken and used Defendant’s images in this fashion, Defendant is informed and believes and thereupon alleges, that an implied license was created between herself and the Plaintiff (and subject photographers), whereby it was understood that Ms. Rinna would be permitted to use and comment on these photographs of her and her family without facing a claim of ‘infringement.’”

The US Copyright Act in the Digital Age

There is no question that how celebrity photos are taken and shared is dramatically different today than in 1976 when the US Copyright Act was enacted. Courts will have to continue evaluating the remaining anachronisms of copyright law as applied to today’s digital world. How the court will decide the fate of Ms. Rinna’s Instagram posts, and whether she receives an implied license or must compensate BlackGrid, remains to be seen.