Kaytie Hobbs, Blog Chair, University of Cincinnati Law Review
While scrolling through Twitter, double-tapping Instagram posts, and thumbs-upping statuses on Facebook, Americans are exposed to an abundance of various newsworthy events of the day. In following pop culture, a good chunk of these posts may be media outlets posting photos taken by the paparazzi; some may be images that celebrities themselves post; and others may be the photos that celebrities see of themselves – though taken by the paparazzi – and copy to their own personal accounts. Intuitively, this last category seems acceptable – why wouldn’t Ariana Grande be able to post a picture of herself that another person has taken? It is a picture of her, after all. But copying another person’s photo implicates copyright law, even if it is the subject of the picture doing the copying.
There has been a rise in litigation concerning these types of posts. Ariana Grande was recently sued for posting an Instagram photo of herself taken by photographer Robert Barbera.[1] Grande does not stand alone; Kim Kardashian, Gigi Hadid, and Jennifer Lopez have also been sued for similar Instagram posts.[2]
Intuitively, this may seem unfair. However, Barbera has a valid claim under copyright law, and would likely prevail on any counterclaims alleging an infringement of Grande’s right of publicity.
COPYRIGHT LAW SUMMARY
Copyright law protects original works of authorship fixed in any tangible medium of expression.[3]The statute covers photographs, allowing for copyright protection of such paparazzi photos.[4]The subject matter of the photograph does not have any separate requirements, so long as the portrayal is original (a very low bar!); interestingly, the Supreme Court case holding that copyright protection attaches to photographs resolved a dispute centered on a photograph of Oscar Wilde – a celebrity in his day.
Copyright protection also attaches immediately upon fixation, thus attaching immediately to Barbera’s photo of Grande.[5]There is no dispute that Barbera holds a legitimate copyright in his photograph, and that Grande violated his exclusive rights of reproduction and display by copying and posting the picture to her Instagram. The more fascinating question, however, is whether celebrities have separate rights or means to use these photos of themselves.
RIGHT OF PUBLICITY SUMMARY
Most people would probably reflexively argue that celebrities own their image, and thus would be able to use any photos of themselves, even if copyrighted by others. This argument leads into the discussion of rights of publicity.
Every individual has a right of publicity, though celebrities get more use out of the doctrine. While the statutory language varies depending on the jurisdiction, the Restatement (Third) of Unfair Competition provides the essence of this claim: an unauthorized use of another person’s name, likeness, or identity for purposes of trade will violate that individual’s right of publicity.[6]The phrase “purposes of trade” generally means for a commercial purpose, most notably for advertising or merchandise.[7]
This area of law is amorphous and difficult to predict, particularly because each state is completely different. At first glance, this might suggest that celebrities would have a defense; paparazzi are clearly capturing their image and likely profiting from that image. However, there is one general, broad exception under this doctrine, and that is for newsworthiness.[8]The Restatement, in clarifying the scope of trade purposes, explains that these uses typically do not reach purposes for news reporting or entertainment.[9]The comments elaborate on this standard, advising against finding infringement for using a person’s image in magazines and newspapers, relying on constitutional freedoms of speech and expression as justification.[10]Accordingly, most cases finding a violation of this right involve using celebrity likeness in advertisements as a way to exploit their brand and profit off a deceptive endorsement.[11]
Very few people could argue that articles and photos concerning celebrities’ lives is not newsworthy. There are dozens of organizations that follow celebrities precisely because enough of the public consume those stories. Garnering a profit does not automatically bring acts outside the scope of this exception, because many legitimate news reporting organizations make money; it follows that these uses of celebrity photographs qualify as newsworthy under this exception.
CONCLUSION
Although it seems counterintuitive to disallow a celebrity from using and posting images of themselves taken by paparazzi, there is solid law in the copyright statute and right of publicity doctrine to provide otherwise.
There is a solution, albeit not without a price: if a celebrity finds a flattering photo of herself and wants to post it online, she has the opportunity to license that photo from the copyright holder for a fee. Until then, celebrities should act cautiously before posting photos of themselves they find on the internet.
[1]Robert Barbera v. Ariana Grande and Grandaria, Inc., Complaint, 1:19-cv-04349, May 13, 2019 (https://www.scribd.com/document/410148142/Ariana-grande-lawsuit)
[2]Katherine Lam, Ariana Grande, other celebrities who were sued for posting paparazzi photos of themselves, Fox News, May 16, 2019 (https://www.foxbusiness.com/features/ariana-grande-celebrities-sued-paparazzi-photos)
[3]17 U.S.C. § 102.
[4]Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)
[5]17 U.S.C. § 102.
[6]Restat 3d of Unfair Competition, § 46 (3rd 1995)
[7]Restat 3d of Unfair Competition, § 47 (3rd 1995)
[8]Id.
[9]Id. “[U]se “for purposes of trade” does not ordinarily include the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.”
[10]Id. at comment c. This comment specifically finds against violations of rights of publicity when a celebrity’s name or image is published in a “fan magazine or in a feature story broadcast on an entertainment program.”
[11]See, e.g. Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir., 1988) (holding that Bette Midler sound-alike in a commercial ad violated Midler’s right of publicity); White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992) (holding that Vanna White presented a valid claim of infringement after a Samsung ad used a robot that evoked her image); compareE.T.W. Corp v. Jireh Publ’g, Inc. 332 F.3d 915 (6th Cir., 2003) (painting of Tiger Woods added enough expression as to warrant First Amendment protection).
