Jennifer Lopez recently shared a photo of herself and soon-to-be husband Alex Rodriguez holding hands in front of a New York restaurant. The problem? The photo did not belong to her.
Although we usually see celebrities suing the paparazzi, in an odd twist, the photographer who took the picture is the party filing suit this time. In fact, this isn’t the first time the “paps” have sued a celeb, and it certainly won’t be the last.
Copyright infringement has real consequences – and in this case, a single Instagram post may wind up costing J-Lo $150,000. That said, the real argument lies at the crossroads of copyright enforcement and a famous person’s right to publish images of their own likeness.
Contributory and Vicarious Copyright Infringement
Copyright law says the original creator (in this case, a photographer) is considered the author and owner of a work’s copyright. So the photographer owns the copyright to the photograph that she took. Otherwise, there must be a written agreement signed by the photographer outlining who does have the rights.
Infringement on a copyright occurs when the work (in this case a photograph) is reproduced, distributed, or publicly displayed without the permission of the photographer. So when Jennifer Lopez posted the image of herself and A-Rod, the photographer claimed Jennifer Lopez committed copyright infringement by distributing and displaying the photograph.
But what if J-Lo did not post that photo herself?
When Celebrities Allow Marketing Teams to Access Social Media
Often celebrities have a marketing team and personal assistants who handle the day-to-day management of their online marketing efforts. But the celebrity also has access to these various accounts and channels and is free to contribute if and when they want.
Because of this, there is often a question as to whether the actual celebrity is liable for infringement in cases like these.
Two Ways Celebrities Can Still Be Held Liable for Infringement
The law on contributory copyright infringement answers this plainly. If the celebrity had knowledge (or reason to know) of the infringing activity and/or contributed to it, they may be held liable. Even when the alleged infringer did not have intent or knowledge of the infringement, the claim is still established as “vicarious copyright infringement.”
At the same time, celebrities (and their photographers) are held to a completely different set of standards from ordinary people. Because of this, there are arguments to be made for implied license and co-authorship.
The Argument of Implied License
While implied licenses are typically limited to situations in which one party created work at the other party’s request and then gave the work to the party who requested its creation, the rules are looser for celebs and paparazzi.
Case-in-point, in a recent case involving the paparazzi and Gigi Hadid, her legal team argued there was an implied license between the photographer and herself. Hadid’s argument was that she consented to the photograph, and the photographer knows she has an active social media presence, so the paparazzo could reasonably understand the consent was in exchange for being able to at least display the photo online.
The Argument of Co-Authorship
Perhaps a stronger argument is one of co-authorship. Copyright law actually defines this scenario under its Joint Authorship Doctrine.
It suggests that when a work is created by more than one person, and the contributions wind up merged into “inseparable or interdependent parts of a unitary whole” then a joint (or co-) authorship exists. When that happens, all contributors are recognized as co-owners of the copyright of the final work.
One could certainly argue that without the celebrity’s status, the paparazzi’s contribution would not be worth the same value.
A Paparazzo’s Balance
Photographers need to consider is a lawsuit worth the damage to a symbiotic relationship like that between photographer and celebrity? Is there another agreement that might be reached that can foster a stronger relationship between them?
We shall see how Jennifer Lopez’s team handles the infringement accusations in the coming weeks. We believe, as a creator and owner of a work, it is essential to carefully evaluate whether an infringement case is the best path for your overall success.
Imagine if Jennifer Lopez shared a photograph of yours because she loved it so much. Surely there is some kind of agreement that might be reached to strengthen your relationship and benefit all parties.
If you are currently weighing an infringement issue, and need assistance finding your balance, reach out to Marks Gray. We evaluate all the potential benefits when it comes to protecting your work.