In Court, Celebrities Accuse Paparazzi of “Exploiting” Their Image for Profit
In an article for New York Magazine, Emily Ratajkowski wrote, “I’ve become more familiar with seeing myself through the paparazzi’s lenses than I am with looking at myself in the mirror. And I have learned that my image, my reflection, is not my own.”[1] Her reflective essay was in part provoked by a lawsuit filed against her by paparazzo Robert O’Neil.[2] In 2019, O’Neil photographed the model exiting a Manhattan flower shop.[3] In the image, she is holding the bouquet in front of her face to shield herself from O’Neil’s lens.[4] Five days later, Ratajkowski posted the photo to her Instagram Story with the words “mood forever” emblazoned across the bottom.[5] The photo was automatically deleted after twenty-four hours.[6] One month later, O’Neil sued Ratajkowski for copyright infringement,[7] seeking $150,000 in damages.[8] On September 28, 2021, the District Court for the Southern District of New York held that Ratajkowski did in fact infringe on O’Neil’s copyright by posting the photo to her Instagram Story.[9] However, further proceedings will determine whether Ratajkowski’s editing and posting of the photo constituted fair use.[10] Fair use is an affirmative defense to copyright infringement that shields the defendant from liability when he or she uses the copyrighted work for a sufficiently different and productive purpose, “such as criticism, comment, news reporting, teaching . . . scholarship, or research.”[11]
Alas, Ratajkowski’s pronouncement in New York Magazine was correct––she does not have a property interest in the photo, even though she is its subject.[12] Ratajkowski tried to challenge this principle in federal court by arguing that O’Neil “took Ratajkowski’s photograph without her consent and attempted to use that photograph to exploit her fame and notoriety; without Ratajkowski’s image, he would have no image to attempt to license.”[13] Nonetheless, the court reiterated that photographers do not relinquish their ownership interest in an image simply by making someone else the subject.[14]
Emily Ratajkowski is not the only celebrity who assumed she was entitled to share flattering paparazzi shots with millions of social-media followers.[15] With the ever-growing popularity of Twitter and Instagram, paparazzi and their agencies are capitalizing on celebrities’ naiveté.[16] By suing celebrities who have posted unlicensed photos of themselves on Instagram, paparazzi can cash in on the Copyright Act’s statutory damage award of up to $30,000 thousand per infringement, and up to $150,000 for a willful violation.[17] A paparazzo is generally able to license a desirable photo for anywhere between $500 and $3000.[18] Meanwhile, Backgrid USA Inc., a celebrity photo agency, is suing reality television star Lisa Rinna for $1.2 million after she posted eight paparazzi photos of her and her family on Instagram without permission.[19] Most of these copyright infringement suits settle out of court, sparing the subject of the photos the cost of litigation.[20]
Some celebrities are fighting back against such extravagant requests for compensation. In addition to Ratajkowski, Lisa Rinna[footnote]See id.[/footnote] and Gigi Hadid also recently opted to litigate copyright infringement claims.[21] Both celebrities echoed Ratajkowski’s assertion of exploitation. Hadid’s counsel stated, “it is an unfortunate reality of Ms. Hadid’s day-to-day life that paparazzi make a living by exploiting her image and selling it for profit.”[22] Rinna’s attorneys contend that “it offends all notions of public policy, and essential fairness, that the plaintiff should be permitted to benefit from the exploitation of Ms. Rinna’s image, while she remains unable to use these photographs for her own, personal purposes.”[23]
Why have these celebrities not asserted their statutory right of publicity? Both New York and California state law prohibit using a person’s image without their consent for commercial benefit.[24] For one, courts typically do not consider licensing images[25] or publishing them in a magazine, newspaper, or other “news” source to be a commercial use of the image.[26] Virtually the only instance where the subject of a photograph can recover on a right of publicity claim is when their image is used to endorse or advertise a product or service.[27]
Should we feel bad for celebrities committing copyright infringement by posting on Instagram? IP Lawyer Neel Chatterjee suggested to the L.A. Times that these copyright disputes are “the cost of doing business if you’re a celebrity and you’re living off promotion of your own image.”[28] On the other hand, the failure of the Copyright Act and state law to give a nonconsenting subject of a work a property interest in that work could have broader implications. On Monday, November 1, the Massachusetts Supreme Court heard arguments in Tamara Lanier’s lawsuit against Harvard for ownership and profits associated with photos of her enslaved great-great-great grandfather in the Peabody Museum Collection.[29] Harvard Professor Louis Agassiz commissioned the photos in 1850 for his research on polygenism, “the discredited theory that each race has a separate origin, usually invoked to support White biological superiority and scientific racism.”.[30] Last year, the Massachusetts Superior Court granted Harvard’s motion to dismiss the lawsuit, which asserted that the subject of an image has no possessory interest in that image, even if it was taken without consent[31] ––once again reinforcing Ratajkowski’s revelation that her image is not her own. Lanier argues for a more sympathetic ruling in light of Harvard’s “decades-long campaign . . . to exploit [the photos] for prestige and profit” by displaying, licensing, and publishing them.[32] In an article for Hyperallergic, Valentina Di Liscia writes, “[i]n a nation permanently scarred by the legacy of slavery and the persisting scourge of anti-Black violence, Lanier’s battle for the rights to the likeness of her enslaved ancestors could have monumental implications far beyond the field of visual representation . . . .”[33] While celebrities might be unsympathetic victims of black-letter copyright law, perhaps it is time for Congress or state legislatures to consider how current copyright infringement and right of publicity rules could have exploitative consequences for more vulnerable groups.
Footnotes
