Miley, What’s Good? – Paparazzi Sued Singer for Copyright Infringement
The Midnight Sky singer and actress Miley Cyrus was sued for copyright infringement by a paparazzo, Robert Barbera, for posting a picture Barbera had taken on Instagram without his permission.[1] This is not the first time Barbera has sued celebrities for posting his copyrighted photographs, notable examples include Justin Bieber, Ariana Grande, and Dua Lipa.[2] All of these claims were settled.[3] And spoiler alert – this claim was settled as well.[4]
Paparazzi suing celebrities for copyright infringement has become a prevalent practice in the last few years, starting in April 2017 with Khloe Kardashian.[5] Most of these cases are settled, however, there is one case worth highlighting as it is one where the celebrity could get the suit dismissed.[6] The District Court for the Eastern District of New York dismissed a copyright infringement against Gigi Hadid, as the photographer commenced the action before being granted a copyright registration for the photograph.[7] Unfortunately for Ms. Cyrus, Hadid’s victory cannot apply to this case because copyright registration was granted before Mr. Barbera sued her.
On September 12, 2022, Robert Barbera filed a copyright infringement lawsuit against Miley Cyrus in Los Angeles federal court, claiming that she reposted an image he took of her without a license or permission.[8] In the complaint, he wrote that the posting of the image “crippled if not destroyed” his ability to make money licensing it.[9] The complaint further alleges that “the Photograph was copied, stored and displayed without license or permission, thereby infringing on plaintiff’s copyrights.”[10]
Miley Cyrus posted the photograph on Instagram the same day the Paparazzo took it, February 13, 2020. [11] The paparazzo applied to the United States Copyright Office on April 11, 2020, and was registered on the same day.[12] Furthermore, the complaint alleged that the photographer only saw that the singer posted it on her Instagram account on May 10, 2020.[13]
Around a month after the copyright infringement was filed, on October 18, 2022, Robert Barbera dismissed the claim with prejudice since he and Miley Cyrus settled the suit for an undisclosed amount.[14] Miley and her team made the smart move to settle, as the paparazzo had the law in his favor. To establish copyright infringement, the plaintiff must prove two elements: “1) ownership of a valid copyright, and 2) copying of constituent elements of the work that are original.”[15]
Here, Barbera could prove both elements since the photographer had a valid copyright – he registered it on April 11, 2020, and Miley Cyrus copied the original work elements since she posted the same photograph without alterations on her Instagram. Furthermore, as mentioned earlier, this is not a case where dismissal would be possible, as the registration occurred before filing the suit, unlike the Hadid case.
Several celebrities have been vocally opposed to these lawsuits, such as Lisa Rinna, Gigi Hadid, and Emily Ratajkowski.[16] These celebrities articulate that this is an exploitative practice.[17] Rinna’s attorneys even state 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.”[18]
Until this situation is remedied, celebrities should license or ask permission to use Paparazzi photos to avoid these lawsuits. It would likely be less expensive than settling or fighting these cases. For example, in Miley’s case, the Singer could have faced damages of around $150,000 if she did not settle, and I predict that the settlement amount is more than what she would have to pay the Paparazzo for the use of the picture.[19]
Footnotes
