Image Credit: Splash News
Paparazzi have long made their incomes from photographing celebrities and then selling those photos to various publications. The juicer the photograph, the bigger the paycheck. For example, catching a celebrity in a compromising situation (e.g., Britney Spears circa 2007) can earn a paparazzo a decent payday. Being the first to capture an image of a celebrity’s wedding or child also promises a large return. However, inconsistency is one major issue with this occupation, which has led some paparazzi to pursue different sources of income related to the images they capture.
One such financial pursuit that has become common lately involves filing lawsuits against the very subjects whose images paparazzi go to great lengths to capture. Paparazzi have been increasingly filing copyright infringement lawsuits against the celebrities they photograph when said celebrities post those pictures on their respective social media accounts.
A paparazzo most recently filed suit against supermodel Gigi Hadid for posting a picture of her ex-boyfriend, Zayn Malik, on her Instagram story. Paparazzo Robert O’Neil filed the lawsuit against Hadid in the Southern District of New York, citing copyright infringement. O’Neil claims that Hadid “is not, and never has been, licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the Photograph.” O’Neil requests relief of “actual damages and Defendant’s profits, gains or advantages of any kind attributable to Defendant’s infringement of Plaintiff’s Photograph” or “statutory damages of up to $150,000.”
Though this most recent lawsuit involves Hadid posting a photograph of Malik, a number of lawsuits over the past few years have involved celebrities being sued for posting paparazzi-taken photographs of themselves. Some of the targeted celebrities include Khloe Kardashian, Jessica Simpson, Jennifer Lopez, and Ariana Grande. In fact, NFL player Odell Beckham Jr. sued a news site for extortion after he allegedly received a demand for $40,000 after he shared an image of himself on Instagram.
Typically, paparazzi can license the photos they take by registering them with the U.S. Copyright Office for a couple of hundred dollars per photo. Copyright is a legal device that provides the creator of a literary, artistic, musical, or other creative work with the sole right to publish and sell that work. The owner of a photo is generally the photographer, though in some cases the employer of the photographer may be considered the owner. Further, registration with the U.S. Copyright Office is not a condition of copyright protection; copyright is secured automatically when the work is “created.” Registration is merely a formality in order to make a public record of the basic facts of a particular copyright. Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
A copyright infringement suit can yield a photographer up to six figures in damages if the violation was willful and as much as $30,000 absent a finding of willfulness. The irony of this potential payout is hard to miss as related to paparazzi photos of celebrities. Paparazzi generally spend their careers taking unauthorized photos of celebrities yet become upset when these individuals in turn use those photos.
While copyright protection of photography is as important as with any other creative work, there should be a way to avoid an infringement lawsuit for posting a photograph of one’s own likeness. As the law currently exists, there is no such caveat. As such, celebrities should be careful in posting images of their own likeness, or they risk a copyright infringement lawsuit.
Liz Costello, University at Buffalo School of Law, Class of 2020. Liz is the Treasurer of the Buffalo Sports and Entertainment Law Society, an Articles Editor of the Buffalo Law Review, and an anticipated associate at Rupp Baase Pfalzgraf Cunningham LLC. Having grown up in Los Angeles with an entertainment attorney mother, Liz is especially interested in the legal issues surrounding music, film, television, and sports. Her favorite activities include going to local live music and sporting events.