Chinyere Obi
I always tell my friends that I never want to be famous. If, by a strange stroke of luck, I achieve overnight fame I would either pull a Daft Punk and cover my face with a helmet or a Gorillaz and animate myself. Though some may find this histrionic, there are some real legal implications as to why one should be cautious with their identity. In particular, the issue of paparazzi exploiting celebrities’ right of publicity by using their own images against them. This is becoming increasingly apparent with the rise of social media platforms such as Facebook, Instagram, Tik Tok, etc. where the more celebrities post about their private lives, the more opportunities there are for fans (and foes) to use their images.
One of the first instances of a celebrity getting burned was back in 2017 when Xposure Photos Ltd. sued Khloe Kardashian for re-posting this photo of her and sister Kourtney entering a restaurant in Miami. Xposure sought $150,000 in damages from Khloe infringing the photographer’s copyright by distributing and displaying the image to her millions of followers without a license.[1] The complaint alleged that Kardashian infringed Xposure’s exclusive right under 17 USC § 106(1) “to reproduce the copyright work in copies…” and §106(5) “to display the copyright work publicly.” In other words, because the photographer is the one who actually took the picture, they are the sole copyright holder of the image, not the image’s subject, and anyone who utilizes the photo must pay for a license. Strange concept, right? In the end, both sides agreed to dismiss the lawsuit and “bear their own legal costs.”
Similarly, model Gigi Hadid also fell into some hot water last year when she re-posted the below image of her. The photo was taken by paparazzi, and later sold to Xclusive-Lee Inc., who similarly alleged that Hadid copied and distributed the copyright protected image to her Instagram without a license.
The tea gets really hot when you start asking the hard questions: if the celebrity is the reason the photo has a high value, why should another person profit and the celebrity be chastised? This was the big question in Odell v. Splash News where paparazzi snuck a picture of an injured Odell Beckham Jr, outside his home in New Jersey.[2]. The photographer sold the image to Splash News & Picture Agency who, in turn, sued Beckham for copyright infringement when he displayed and distributed the photo on his Instagram.
Now, I bet the Daft Punk/Gorillaz plan does not seem so crazy, right? There are some (legal) reasons why this plan would be ideal for celebrities going forward. For example, if I created an animation of myself (“Celebrity Chi Chi” aka Triple C), I could register the animation as a character pursuant to 17 USC §101 which affords protection for highly delineated characters. This is beneficial for two reasons. First, if I was an animation, there is a slim chance that paparazzi could sneak a shot of a cartoon entering a restaurant or walking on the street. And, second, if, without my consent, paparazzi tried to create a photo using my celebrity character, I could bring action against the photographer (and any photo agency who buys the photo) for infringing on my copyright pursuant to 17 USC §101 This follows from Gaiman v. McFarlane, where the Seventh Circuit implemented the delineation test and recognized Gaiman’s character “Spawn” eligible for copyright protection because it was a very detailed graphic novel character.[3]
Another method to explore is challenging the validity of the images’ copyright themselves. The Tenth Circuit in Blehm v. Jacobs applied a filtration analysis – which called to “filter out” all non-copyright protected elements between two stick man figures (i.e. lines, body parts, the activities displayed, etc.) – to determine that defendants did not copy nor infringe upon the plaintiff’s copyright-protected Penman figure.[4]
Then, if one uses a filtration analysis on the paparazzi photos, what is actually protected by copyright in these images? Copyright does not protect Fashion, so it cannot be the subject’s outfits. One cannot copyright body parts, so that fails. A moment of someone walking on the street? Seems more likely to fall under the scenes à faire doctrine (meaning scenes that are so typical of a scenario that they become an idea and cannot be copyrighted). Paparazzi typically have no artistic input with the photo and, thus, are lacking originality required under 17 USC §102, so why are paparazzi allowed to copyright these images?
Additionally, what does this mean for the culture of fashion, particularly Street Fashion, and the entertainment industry as a whole? Should the celebrity, the reason the photo has value, get a cut of the profits or should the photographer retain all the profits because they actually put in the work of taking the photo? Are celebrities just game in the paparazzi’s hunt for extortion? A lot of questions and very few answers.
[1] Xposure Photos (UK) Ltd., v. Kardashian, No.:2:17-cv-3088 (C.D.C.A. 2017)
[2] Beckham v. Splash News and Picture Agency, LLC, No.: 2:18-cv-01001-JTM-JCW
[3] Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004)
[4] Blehm v, Jacobs, 702 F.3d 1193( 10th Cir. 2012)