When news broke on Monday that Miley Cyrus was facing a copyright infringement lawsuit for allegedly posting an image of herself on Instagram without the photographer’s permission, it sounded familiar.
Another celebrity allegedly misused intellectual property and was sued by a photographer for posting a picture on their social media without obtaining a license or consent first. It has become almost formulaic at this point.
In the last few months, we have seen celebrities like Dua Lipa, Emily Ratajkowski, Bethenny Frankel and rapper Nas hit with copyright infringement lawsuits by a photographer for exactly the same offense.
So why do some celebrities license photographs for social media and others don’t?
After getting sued by Xposure photos for sharing one of the agency’s pictures on her Instagram in 2017, Khloe Kardashian revealed that she now licenses images before posting them online. But that is not without grievance on Kardashian’s part.
In 2018, she tweeted that licensing images from photographers “makes no sense” to her as she is “reposting an image of MYSELF.” Equally, her fans could not believe that Kardashian had to obtain permission to do this too.
Yes!! I have to license some of the images first. A paparazzi sued me in the past for reposting an image of MYSELF. So now it just takes me a little longer because I have to go and license the images so they don’t get my 💰 MAKES NO SENSE. https://t.co/GNUWUWUxZl
— Khloé (@khloekardashian) August 19, 2018
In another tweet, Kardashian continues “They [paparazzi] can legally stalk me and harass me and then on top of it all I can’t even use the pictures of myself.”
Kardashian’s protestation that photographers “harass” her may seem dubious when the historical relationship between celebrities and paparazzi is usually a far more collaborative and mutually beneficial one. A former Rolling Stone magazine owner recently revealed that Angelina Jolie was actually “the tipster” who set up the famous photos which broke the news about her relationship with Brad Pitt in 2015. Meanwhile, an article in The Guardian last month estimated that 80 percent of paparazzi shots are set up in advance by the celebrities themselves.
In fact, it is this “very symbiotic” relationship between celebrities and photographers, that actress Lisa Rinna used as a reason for defiantly fighting back when she was faced with a $1.2 million lawsuit from a photo agency after she posted paparazzi images of herself on her Instagram account without compensating them.
An agency that represents paparazzi asserts that Lisa Rinna infringed its copyrights by posting photos of herself and her two daughters on her Instagram page.
— Los Angeles Times (@latimes) October 5, 2021
In the end, Rinna settled the lawsuit with the photo agency. And that is most likely because U.S. copyright law is quite straightforward when it comes to intellectual property and clearly states that the person who “authored” a work is the copyright owner. In this context, a photographer who takes a picture of a celebrity is the creator of the work and therefore owns the rights to the image.
In spite of this crystal-clear definition of intellectual property in the eyes of the law, some celebrities still refuse to license images for their social media and adamantly believe they should own the photos taken of them, not the photographers.
In March, Snoop Dogg shared his disgust with copyright law when Nas was sued
for posting an image of himself to Instagram without photographer, Al Pereira‘s permission. The rapper did not understand how a photographer could sue a person for a photo that the person is in, and argued that current copyright laws need to be updated.
Model Emily Ratajkowski, who has been sued numerous times for copyright infringement, has openly spoken out against photographers who have profited from her image and expounded her belief that she should be able to own and control that image.
In October 2019, Ratajkowski was sued for sharing a photographer’s image to her Instagram Stories with the caption “mood forever”. In the picture, she uses a large vase of flowers to hide her face from the paparazzi as she walks down a New York City street.
— The Fashion Law (@TheFashionLaw) October 4, 2021
Ratajkowski described her anger and shock over getting sued for a photo of herself in her essay “Buying Myself Back” in The Cut.
“I learned the next day from my own lawyer that despite being the unwilling subject of the photograph, I could not control what happened to it, ” Ratajkowski writes.
“I have learned that my image, my reflection, is not my own.”
In court, Ratajkowski’s attorneys argued that her use of the image was a legal “fair use,” because she had posted it to Instagram as a criticism of invasive paparazzi. They argued she had transformed the photo from an “exploitative image” snapped without her consent to “a commentary on the harassing and relentless behavior of paparazzi.”
But ultimately, Ratajkowski reached a settlement with the photographer.
Other celebrities have argued that they have the right to photographs of them because they are “joint authors” and because they have cooperated with the photographer and posed for the picture, they have therefore established themselves as a co-creator.
Model Gigi Hadid used this argument in 2019 when she claimed that posting a copyrighted photo of herself on Instagram it was “fair use” because she had contributed to the photo by smiling in it. However, courts generally reject this argument, as did the judge who ruled over Hadid’s case — although the lawsuit did get dismissed for other reasons.
In order to circumvent the copyright issues when it comes to paparazzi shots of them, some stars, like Rihanna, form a special relationship with certain press photographers and enlist only them to take their images. In February, Rihanna entrusted paparazzi photographer Miles Diggs to take the candid photo which broke the news of her pregnancy to the world.
In the end, certain celebrities will continue to infringe on photographers’ copyright regardless and share images taken by paparazzi on their Instagram accounts while others will work with photographers with full knowledge of how copyright law works. Because of the negative connotations that still pervade paparazzi photographers, certain swathes of the public will continue to support celebrities who argue that they should own a photographer’s image of them, but as long as copyright law remains the same, this will be hard to prove.
Notwithstanding a major change to copyright law or how fair use is determined, the strategy of working with photographers rather than actively against is the smarter strategy, at least for now. That said, fair use is a topic that is about to head to the Supreme Court and that ruling may have an effect on how both it and copyright of images is determined in the future.
Image credits: Header photo composite compiled by images from Depositphotos.