Who Owns a Photograph in the Social Media Age?

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Although a generally well-settled question of law, a string of recent cases has renewed interest in a common question: Who owns a photograph? Of course, this question is not novel, but the rise of social media and the greater influence of often-photographed celebrities are drawing more lawsuits and potential new distinctions to this question.

Photographs are protected by copyright at the moment of creation, and the owner of the work is generally the photographer (unless an employer can claim ownership). In most cases, the subject of the photograph has no intellectual property right in the photograph, much to the disappointment of many high-profile celebrities looking to use photographs of themselves in their social media posts.

The list of celebrities facing the wrath of litigious photographers is long, and growing: Justin Bieber, Halle Berry, Khloe Kardashian, LeBron James, Emily Ratajkowski, Gigi Hadid, Deshaun Watson and many more have faced lawsuits recently. As with any high-profile litigation (especially suits involving celebrities), these cases over the ownership of photographs tend to settle quickly and leave little legal precedent in their wake. However, in a few such cases, celebrity defendants have recently pushed established doctrine, with celebrity defendants attempting to carve out a portion of this important intellectual property right.

In one example, Gigi Hadid recently claimed that simply by stopping to allow the photograph to be taken, she “contributed” to it and its protectable nature.

In another instance, Emily Ratajkowski filed a motion for summary judgment in the U.S. District Court for the Southern District of New York to have a case filed against her thrown out. Ratajkowski is accused of using a photographer’s image on her Instagram without a license. Importantly for her defense, the photographer was a paparazzo and the image showed that Ratajkowski had tried to hide behind a bouquet of flowers. In her motion, Ratajkowski claims “transformative use,” as she added the words “mood forever” at the bottom of the image—an attempt to highlight the “predatory nature” of the photographer’s actions when taking the photograph. Ratajkowski’s argument is practical, tying her use to an established copyright exception. It also incorporates an important emotional argument having to do with the behavior of paparazzi that runs deep in the world of modeling with which she is so familiar.

In a third case, NBA superstar LeBron James found himself in federal court over the alleged misuse of a photographer’s shot of him in a game against the Miami Heat. The photo of James scoring over a defender was posted to James’s Facebook page. Although the case recently entered a confidential settlement, James provided clues as to how his lawyers planned to defend his actions: he countersued the photographer under a California state law claim—right of publicity and misappropriation of likeness (California Civil Code § 3344). Likely because of the additional state law claim, the case was moved from the Southern District of New York to the U.S. District Court for the Central District of California. Had the case continued, James’s position would likely have been met by a number of defenses from the photographer, including preemption by the Copyright Act and the newsworthiness exception to the California statute—courts have found similar public events to meet this exception.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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