Updated: Jan 21, 2022
Historically, the performing artists in the entertainment industry always seem to have had the upper hand due to their popularity but that is not necessarily true anymore. In the past decade itself, there have been multiple cases of celebrities being sued by the paparazzi for posting their own pictures on their social media. Thus, the prevailing question is, if it is illegal for celebrities to post their own photographs? The preponderante opinion of the general public is always in the favour of the celebrity, but if you know the technicalities of the Copyright law, you know that this might not be the case here. This issue has birthed a stimulating debate between the Copyrights of the paparazzi and the Celebrity rights of the subject.
PROVISIONS OF THE LAW
The Copyright for any work is governed by the act dedicated to it within the given jurisdiction. Thus, the rights of the paparazzi in this situation are provided for in the Copyright Act of their own country. Since such an instance has not yet occurred in the Indian jurisdiction, the analysis of the same shall remain hypothetical. The Indian Copyright Act, 1957 provides for the copyright in any work under Section 17 and states that the first owner of any work is the ‘author’. With respect to photographs, the author as per Section 2(d) is defined as the photographer. Thus, it is fairly simple to conclude that the prima facie rights to the photographs clicked by the paparazzies is with them. The only instance where such a right may be contested is if the use of these photographs falls under the exceptions provided in Section 52 of the Act. Thus, this issue factors in the prevalent arguments from the Infringement v. Fair Dealing debate.
ARE PAPARAZZI PHOTOGRAPHS FAIR USE?
The provisions of Section 52 of the Act provide for a list of instances when the use of a Copyright work without due permission does not lead to infringement, and instead is designated as Fair dealing. These instances include ‘private or personal use, criticism or review of a work or reporting of current affairs or events’. The issue at hand can only be considered as Fair Dealing or Fair Use if an argument is made that the Celebrities who post paparazzi photographs are only doing so for personal use. But such an interpretation can only be done if there is an addendum in the existing provision which states it explicitly or if a precedent dictating the same is established. If the social media account of the celebrity is restricted to their close friends and family members or is a ‘private’ account, the defence of fair use may be used. But, in the present sphere, a post by a celebrity displayed at large for millions of followers to see cannot be considered as ‘private use.’
ARE PAPARAZZI PHOTOGRAPHS A CELEBRITY’S RIGHT?
It is imperative to remember that during the enactment of the Copyright Act, the current technologies were not available, thus, certain provisions of the Act are in outright conflict with the latest developments. In this case, the rights granted to the paparazzi clash with the celebrity’s rights to publicity. But this quagmire may be resolved by elaborating upon the objectives of celebrity rights. Celebrity Rights, also known as, Publicity rights essentially refer to the celebrity’s right to commercially appropriate their appearance in the public. It is an incipient concept which has only recently been recognised in the Indian Jurisdiction. The Delhi HC’s analysis of Publicity rights in the case of ICC Development (International) v. Arvee Enterprises included the categorisation of the right to a celebrity’s name, voice, image, signature, etc. as their Publicity right. Any infringement of this is considered as a tort and it creates a liability on the infringer damages. But the primary objective behind the grant of Celebrity rights is to protect the image of the individual. Since the photographs clicked by the paparazzi do not mislead the audience in any form or manner the defence under Publicity Rights cannot be claimed. In this reference, it may additionally be stated that paparazzi photographs are not required for a celebrity to promote themselves and thus, are not imperative for commercial appropriation of their own image.
CASE STUDIES WITH CONCLUSION
Emily Ratajkowski is one of the most recent celebrities being charged with unauthorised posting of a paparazzi’s photograph. Eva’s Photography, the corporate entity which employed the aforementioned paparazzi, had filed this suit on the use of model/actress Emily Ratajkowski’s photograph by herself on her personal account. This post was further reposted by a fashion brand for everyone to see. The complaint was only made against Eva for “misconduct and violation of the United States copyright laws.”
In 2020, the singer and artist, Ariana Grande was sued by a photographer Robert Barbera for posting paparazzi photographs of herself on her Instagram account. The plaintiff had claimed that the artist had not taken prior permission from him and was thus infringing his copyright. The plaintiff claimed that since the artist had used the picture to promote her merch, the act was of commercial nature and thus cannot be considered as Fair Dealing. The suit was concluded by the parties by reaching a settlement amount paid by the artist.
In 2018, model Gigi Hadid was also sued for posting a photo of herself on her Instagram account. The suit was filed by Xclusive-Lee, Inc. seeking injunction and damages.
In 2017, within the span of two days, Jennifer Lopez followed by Justin Bieber were sued for infringement for using a photograph clicked by paparazzi without giving them any credit. The claims were made for unauthorised reproduction and public display without consent of copyrighted works.
None of these cases were concluded in the favour of the artist. But the cases faced complexities in determining the amount of damages while factoring in platforms the photographs were shared on as well as the time period. For instance, an Instagram story which only lasted for 24 hours was given considerably less relevance than a permanent Instagram post in terms of determining the damages.. Further, it has also been established that a story repost shall not be considered as infringement, since the account initially posting it is clearly visible in the repost.
Thus, it has been clearly established vis-à-vis the aforementioned list of precedents that in case of paparazzi photographs, copyright trumps over celebrity rights even if the image used is that of the celebrity themselves. So, yes, to conclude, it is illegal for celebrities to post pictures of themselves if these pictures are not clicked by their crew and due credit has not been given.
Aryan Bhat and Yashendra, Whose Photo is it, really?: Dichotomy of rights and copyrightability of paparazzi photographs, The RMNLU Law Review Blog, September, 2021, https://rmlnlulawreview.com/2021/09/20/copyrightability-of-paparazzi-photographs/
Eva’s Photography, Inc. v. Inamorata Swim LLC, 2:21-cv-08136 (C.D.Cal.)
TFL, From Bella and Gigi Hadid to Goop and Virgil Abloh: A Running List of Paparazzi Copyright Suits, October, 2021, https://www.thefashionlaw.com/from-bella-and-gigi-hadid-and-goop-to-virgil-abloh-and-marc-jacobs-a-running-list-of-paparazzi-copyright-suits/
ICC Development (International) v. Arvee Enterprises, 2003 (26) PTC 245.
DM Entertainment v Baby Gift House and Ors., MANU/DE/2043/2010.
Manasa S. Venkatachalam, Can Celebrities be Sued for Posting Paparazzi Photographs of Themselves on Social Media?, Spicy IP, February, 2021, https://spicyip.com/2021/02/can-celebrities-be-sued-for-posting-paparazzi-photographs-of-themselves-on-social-media.html
Robert Barbera v. Ariana Grande and Grandari, Inc., 1:19-cv-3620 (SDNY).
THE COPYRIGHT ACT, Act No. 14 of 1957, India Code, 1957.