Not that I have any delusions about the reach of this blog, but for what it’s worth, here’s a pro-tip for celebrities everywhere about sharing photographs of yourselves on social media: if you don’t own the rights in the image, don’t post it.
This keeps happening. A celebrity posts an image of himself, the photographer who owns the rights in the image sues for copyright infringement; and the celebrity gets an expensive lesson in the difference between publicity rights and copyrights. Most recently, Snoop Dogg, in response to a photographer suing fellow rapper Nas for posting a photo of himself on Instagram, complained, “Photographers shouldn’t own their photographs of celebrities.” In a video shared by PetaPixel, Snoop Dogg sums up his view as follows:
“When you take a picture of a n***a, that picture ain’t yours. That’s a mere likeness-type situation. You’re borrowing my likeness.”
I don’t expect Snoop to know that his opinion has been wrong as a matter of U.S. law since 1884 any more than I expect that he wants to hear me rap. But he put his finger directly on the confusion that persists—namely that the subject of a photograph (famous or otherwise) is not the author/owner of the photograph under copyright law.[1] Likenesses are subjects of publicity rights, which vary from state to state and primarily concerns uses of a likeness to imply that the subject endorses a message or product. Nothing to do with copyright.
Of course, I am not responding to Snoop Dogg because I think he’s about to lead a celebrity revolt to invalidate copyright protection for all photos of famous people (and I am sympathetic to anyone who has to deal with aggressive paparazzi). But I do think the biggest stars in the world should recognize that they are connected to, and beneficiaries of, a copyright ecosystem which includes a vast population of middle-class workers in every field.
Most celebrities are famous and wealthy because the work they produce is protected by copyright law, and while those protections apply (on paper) to all creators great and small, the reality is that most middle-class creators can barely afford to enforce their copyright rights. Photojournalism, whether of celebrities or any other subject, is a job, one mostly paid through licensing fees. When images are posted without permission on platforms like Instagram, this directly cuts into the photographer’s bottom line by diluting the value of the image, thereby, limiting the ability to charge licensing fees throughout the market.
Snoop Dogg and his contemporaries are old enough to remember a world before Instagram and the other multi-billion-dollar social platforms. They probably didn’t know much about copyright back then either, but they didn’t need to. Before social platforms, copyright boundaries were more commonly supported by mutual respect for the idea that, for instance, the photographer owns the rights to his images just like the singer/songwriter owns the rights to his music.
That was before Zuckerberg and Dorsey et al. invented a way for celebrities to promote themselves all day every day. And then, of course, that opportunity became necessity. Today, the celebrity gets to stoke the fire of notoriety at no monetary cost, the social platform makes a fortune from all that activity, and everyone wants to forget that the photographer plays a pivotal role in the mix—often a highly valuable role by capturing something rare.
Sometimes, the celebrity makes the photographer, and sometimes the photographer makes the celebrity. In the aforementioned 1884 Supreme Court decision affirming copyright protection for all photographs, photographer Napoleon Sarony was more famous than the subject in the photograph at issue—a young man who was not yet the Oscar Wilde.
Like rap artists, the best photographers synthesize the world we all see into expressions that say something distinctive beyond the mere facts of the world. It is those expressions which copyright protects, and the reason we use the word ecosystem in copyright advocacy is that we recognize the interdependence among various creators working in different media.
It’s bad enough when naïve teenagers post works without thinking and dilute a creator’s market value. But when it’s done by multimillionaire creators whose careers also depend on the copyright ecosystem, it is especially insulting. If you don’t own it, don’t post it. Or post away and face a lawsuit you deserve to lose.
[1] Notwithstanding a subject hiring a photographer and potentially owning the work under the WMFH doctrine.
Photo by: Cineberg
