Category: Photography

The Ratajkowski Copyright Suit & Authorship in Photography

In my recent post about the McCloskey photograph, I said that courts tend to favor a photographer’s right to capture and distribute an image, even in situations involving fairly substantial privacy invasions in order to obtain photographs of limited news value. What I had in mind was the kind of paparazzi who aggressively pursue celebrities (especially women), and I was thinking specifically about a recent copyright dispute between model/actress Emily Ratajkowski and a photo taken by Robert O’Neil.

In a compelling article that Ratajkowski published in The Cut, she passionately advocates her right—and by extension anyone’s right—to maintain at least some control over her own likeness. She begins the piece by describing her feelings about the copyright lawsuit filed against her by O’Neil after she posted his photograph of her on Instagram without license. In the image, Ratajkowski is captured walking on the street. She holds a bouquet of flowers that completely obscures her face. Only her bare legs extending below the hemline of a light raincoat are visible as any part of her. Before reposting the photo to Instagram, she added text superimposed near the bottom of the frame that reads “mood forever.” She writes:

Since 2013, when I appeared in a viral music video, paparazzi have lurked outside my front door. I’ve become accustomed to large men appearing suddenly between cars or jumping out from behind corners, with glassy black holes where their faces should be. I posted the photograph of me using the bouquet as a shield on my Instagram because I liked what it said about my relationship with the paparazzi, and now I was being sued for it. I’ve become more familiar with seeing myself through the paparazzi’s lenses than I am with looking at myself in the mirror.

With regard to the behavioral aspects of these too-familiar stories, our sympathies naturally go to the celebrities who find themselves in Ratajkowski’s shoes. The experience of being stalked, having one’s privacy invaded, etc. by paparazzi are subjects of common law that deserve new consideration in a time when social platforms only increase the demand and the financial incentives for chronic surveillance of models and actresses in particular.

Ratajkowski’s broader message notwithstanding, her legal team’s response to O’Neil’s infringement claim is not well supported by either doctrine or case law. Her counsel alleges first, that the photograph lacks sufficient originality for copyright to attach; and second, that the model’s use was transformative and, therefore, a fair use as commentary. Yet, despite the inherent weakness of these two defenses, the language in the response on originality prompts a legal theory that her counsel does not appear to advance in this case:  the idea that Ratajkowski herself is at least a co-author of the photograph in question.

An Interesting Copyright Hypothesis

According to an article in The Fashion Law, Ratajkowski’s assertion of non-originality argues that “[O’Neil] did not have any say in how Ms. Ratajkowski was posed, did not create the background in which she was photographed, and did not control the light of the photograph. [He] did not select Ratajkowski’s “clothes, expression, pose, makeup, posture, position on the street, what she was holding, or who else was in the photo.”

To be clear, the image itself does not lack originality due to any of those factors. It is settled law that the “modicum of originality” standard protects a photographer who, in a split-second decision, captures an event that occurs in real life. Any Copyright Office examiner would (and presumably did) approve O’Neil’s photograph for registration without question. Nevertheless, Ratajkowski’s response is at least hypothetically intriguing for one reason:  that the most expressive element in the image is arguably the bouquet of flowers she holds in front of her face—a choice that was hers and not O’Neil’s.

It is a matter of doctrine that copyright protection requires human authorship. And authorship in photography, the first machine-made creative work, derives from two principles:  creative choices visible to the observer, as were dispositive in the seminal case Burrow-Giles Lithographic v. Sarony (1884); and the metaphysical notion of “personality of the artist,” articulated in another Supreme Court case called Bleistein v. Donaldson Lithographing Co. (1903).

The latter doctrine protects the photograph that results from an instantaneous decision to record elements that the photographer does not entirely control. The assumption that the “personality of the author” is present, even in a fraction of a second, is held to be sufficient grounds to meet the low threshold needed to find authorship in a photographic work. This principle supports the genres of street photography, photojournalism, nature and architectural photography, and the work of countless photographers whose images are considered both journalism and fine art.

Despite appearances to the contrary, this “personality of the author” principle is not to be confused with the erroneous belief that button-pushing alone is the act of photographic authorship, though the distinction being made is understandably so subtle as to appear almost moot. But with this in mind, imagine a scenario in which Emily Ratajkowski is aware that she is being photographed by a paparazzo, and so makes a creative decision to hold the bouquet of flowers in front of her face while conjuring a mental conception of the resulting image.

It is mental conception that copyright protects once it is fixed in a tangible medium. So, in this theoretical scenario, has Ratajkowski made a significant creative contribution that would give her a claim of co-authorship of the photograph? There is almost always collaboration between model and photographer; both are making choices, often in quick succession. But any question of joint authorship is usually nullified by contract. So, could Ratajkowski assert, in this instance, that she engaged in a creative collaboration with O’Neil that was both unwelcome and uncontracted—especially if her use of the bouquet as a prop could be considered a comment on the photograph itself?

This is a thought experiment. My aim is not to advocate Ratajkowski’s actual response to O’Neil’s suit, and certainly not to assert that the facts as I have just imagined them are present in her case. But in theory, it may not be necessary to disturb the case law in order to conceive of limited scenarios in which the subjects of photographs could make creative contributions sufficient to render the works jointly authored. Perhaps this is especially possible where the subject is a professional model and may be assumed to have an instinct (i.e. mental conception) for a pose or gesture that will produce an expression that becomes the “heart” of the work.

Ratajkowski’s article in The Cut asks a very human and very reasonable question:  why is her likeness not hers to control? And although copyright law is not the ideal framework for resolving that question, it is an association that reiterates Samuel Warren and Louis Brandeis’s 1890 law review paper that still informs our thinking on privacy rights. Not only did they look to copyright as a predicate for the idea that personal writings, words, deeds, etc. are a form of property deserving to be left alone, but they specifically cited the unwelcome photography of a stage actress as the kind of gossipy invasion that serves little social or cultural purpose. So, Emily Ratajkowski’s story is not a new one, though it seems to deserve some new thinking in the digital age.

A Court Did Not Rule that Uploading Works Terminates Copyright. But…

On April 14, Eric Garder, writing for the Hollywood Reporter, published a story under the headline: Court Rules Photographer Gave Up Exclusive Licensing Rights by Posting on Instagram. There is nothing technically wrong with that headline—and Gardner did not, I believe, misrepresent any facts in his article. But when I saw photographer Doug Menuez share this story on Facebook the other day, I had the same gut reaction that I bet a lot of visual artists and copyright watchers had. Those words “gave up” made me think, Great, some judge has actually ruled that posting an image on a social media account extinguishes all copyright in the work. (Yes, that is how the nerd in my head always talks.)

I noticed that copyright attorney Leslie Burns, who represents many photographers, bemoaned on Twitter the fact that this story is already being described as one in which uploading to Instagram et al automatically terminates copyrights. That is certainly not what the judge ruled in Sinclair v. Ziff-Davis and Mashable earlier this week. But there is still much to this story—a good news/bad news tale—that should be of great concern to copyright owners. 

The good news is that Judge Kimba M. Wood of the District Court for the Southern District of New York (SDNY) did not articulate any new opinions whatsoever with respect to copyright law. The bad news is that what happened to professional photographer Stephanie Sinclair is yet another reminder that the major tech platforms are predatory animals whose Terms of Service are toxic to creators. Here are the basics …

Sinclair, like many a visual artist needing recognition, posted her work on Instagram under a Public account. On March 16, 2016, Mashable published an article about women photographers and displayed Sinclair’s unlicensed photograph by means of embedding, using Instagram’s API by pointing to the file located on Instagram’s servers. Anyone who might want to interject that the “server test” protects Mashable, hold that thought.

The simple, unfortunate reality is that by uploading her work, the copyright owner “grant[s] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.” In a nutshell, Sinclair, and every other creator uploading works to a Public account, grants Instagram this right to sub-license those works. 

In fact, as Terrica Carrington of Copyright Alliance notes, “These licenses, which are very similar for all the major platforms, are so broadly written that Instagram could, in theory, sub-license a visual work to any party for any use by any means, and even charge the sub-licensee money for it. We haven’t seen the platforms do anything this bold, and they might never do it because it would be bad PR, but the Terms of Service are written broadly enough to allow them to do it legally.”  

Of course none of us reads the Terms of Service (TOS), and for two very good reasons: first, because these agreements are epic and barely comprehensible (Instagram’s runs over 17,000 words); and 2) because opting out of social platforms is not necessarily a viable choice, especially for creators who need a certain amount of publicity to survive. (See what artist Dima Yarovinsky did with the Terms of Service contracts for seven of the most popular platforms.)

Remember that tech-utopian mantra that was popular a few years ago? It went something like, The problem for creators isn’t copyright, it’s obscurity. That was shorthand for the insidious proposition that social platforms provide free venues for creators to expose prospective consumers to their works. While this was/is true to an extent, many experienced creators and rights advocates also pointed out that free publicity channels aren’t worth much, if the same platforms create both motive and means for rampant, unlicensed use of works. 

Sinclair notes this rock-and-a-hard-place issue in her complaint, to which Judge Wood replies, “Unquestionably, Instagram’s dominance of photograph-and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.”

As a practical matter, Sinclair’s untenable litigation is a cautionary tale in which the lesson may be that creators should never upload works they intend to protect onto these platforms. Indeed many photographers do adopt such a policy, but that can be a very difficult decision for many. To echo Sinclair’s point, it is a fine line between social platform as opportunity and social platform as a mandatory appendage one must accept in order operate in the contemporary market at all. File this under the heading the internet giveth, and the internet taketh away. 

So What About That Server Test?

As many readers already know, the server test (or server rule) generally says that when a user of an online platform embeds a link that causes a work (usually an image) to appear on the user’s page, this action does not infringe copyright. For more details see posts here, here, and here; but for a long time, the legal precedent has been that by “pointing” to a file on a server where the work is presumed to be legally copied, this action clearly does not infringe the reproduction right. 

But to any ordinary observer, a photograph on a web page would certainly seem to implicate the creator’s display right, no matter how the page editor caused that image to be displayed. And that’s pretty much what Judge Katherine Forrest held in Goldman v. Breitbart et al, also in the SDNY, in February 2018. In that case, several news organizations had embedded Justin Goldman’s photograph by pointing to Twitter’s servers, and Judge Forrest held that, “… when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party does not shield them from this result.”

So, although there was no reason for the server rule to have been addressed in regard to Sinclair’s complaint against Mashable, it is reasonable to assume that this defense would not have availed Mashable had it been raised. But, what a strange and messed-up situation we have for creators.

Instagram (and the other platforms) write TOS so broad that they could, technically, sub-license a work for any use without a creator’s permission. In practice, these licenses have, thus far, only applied in cases where the sub-licensee embeds images hosted on the first platform’s servers. But the question remains open (i.e. split among circuits) as to whether the server rule unjustly extinguishes the display right. 

So, you see where I’m going here:  the non-negotiable, labyrinthine contracts that creators must sign in order to use social platforms, weaken their copyrights by means of conduct that has been held to infringe under circumstances barely distinguishable from those in Sinclair’s complaint. Yes, the attorneys and legal experts see the distinction between a contract matter and one of case law under the copyright act. But the bottom line for the creators is that corporate interests are still ripping them off.     

Allen v. Cooper: Justly Decided If Not Exactly Just

Professional creators following the case Allen v. Cooper were no doubt disappointed by the Supreme Court’s March 23 decision—a unanimous holding that the States (and/or their agents) are generally free to infringe copyrights with impunity. But perhaps authors of works should not to be entirely discouraged on this matter, because it seems clear from the opinions written that the Justices would have preferred if the law had led them to the opposite conclusion. Moreover, a path for legislative reform remains open.   

A Quick Recap

See post here, or read more extensively on the website of plaintiff Rick Allen. The short version is that Allen’s company Nautilus Productions filmed and photographed excavation and research work performed on Blackbeard’s flagship Queen Anne’s Revenge, which was discovered off the North Carolina coast in 1996. Subsequently, the state made unlicensed uses of Allen’s copyrighted materials, primarily online, and when Allen sued for infringement, North Carolina invoked its sovereign immunity under the Eleventh Amendment, which bars citizens or entities from bringing federal suits against the states or its agents. 

In 1990, Congress passed two laws, the Patent Remedy Act and the Copyright Remedy Clarification Act, both designed to abrogate state sovereign immunity specifically for patent and copyright claims where states are alleged to be the infringing parties. In 2015, North Carolina passed “Blackbeard’s Law,” which specifically lays claim to photographic and AV works documenting shipwreck material a “public record.” So, why didn’t Congress’s CRCA protect Allen’s copyrights in this case? Well …

The IP Clause, the Eleventh and the Fourteenth Amendment walk up to the bar …

As we all know, Article I of the Constitution grants Congress the authority to establish copyright and patent laws; and one rationale for that clause, as Madison noted in Federalist 43, was the assumption that the new nation would be best served by uniform (i.e. federal) laws for intellectual property. (In copyright practice this uniformity was not fully adopted until 1978, and then there’s the whole sound recordings morass, but Madison’s seminal hopes were succinctly clear.) 

At the same time, the prospect of erecting a federal court system was a sensitive matter among anti-Federalists, who were hardly sold on the prospect of union among the States in the first place, let alone allowing their State governments to be potentially sued in the new federal courts by citizens of other States. Thus, in response to just such a case arising, the Eleventh Amendment was passed in 1795 to affirm the principle of “state sovereign immunity,” already extant at the founding period.

Without trying to cram a history of sovereign immunity into this post, suffice to say that States are not generally subject to litigation in federal court but for a handful of exceptions, and most of these exceptions derive from the Fourteenth Amendment of 1868. Relevant to Allen v. Cooper, Section 1 of the Fourteenth affirms civil liberties to all Americans, and Section 5 affirms Congress’s authority to pass such laws as may be necessary to enforce Section 1. Thus, sovereign immunity is abrogated where a State’s conduct or law runs afoul of constitutionally protected rights. 

So, it might seem reasonable to assume that the Article I power of Congress to write copyright and patent laws, which secure the intellectual property rights of all U.S. citizens, would naturally fall into the scope of protections affirmed in the Fourteenth Amendment. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law….” 

In fact, whether one views IP protections as grounded in natural rights or as purely utilitarian forms of property rights, the Fourteenth Amendment, combined with the Article I power, would seem to support Congress’s authority in 1990 to write the pair of laws that explicitly declared that sovereign immunity does not foreclose infringement claims brought by copyright and patent owners against the States. Alas, not so much.

A Very High Standard

Allen’s claim in this case rested on the premise that the 1990 CRCA abrogated the sovereign immunity of North Carolina; but unfortunately, the Supreme Court had already weighed this exact argument with respect to the CRCA’s sibling law, the Patent Reform Act. In the 1999 decision, in a case known as Florida Prepaid, the Court held that the Patent Reform Act did not abrogate sovereign immunity for two intertwined reasons. Article I powers alone are not sufficient grounds for Congress to circumvent sovereign immunity, and this can only be addressed by Section 5 of the Fourteenth Amendment where there is compelling evidence of a harm being intentionally caused by the State, and where no other remedies (i.e. due process) are available. 

In legal terms, the opinion states, “a Section 5 abrogation of sovereign immunity must be ‘congruent and proportional’ to the Fourteenth Amendment injury it seeks to remedy.” In practical terms that means if Congress wants to salvage the intent of the CRCA and/or the Patent Reform Act, they will need evidence, which proves that intentional infringement by State actors poses a significant threat to the interests and rights of authors and/or inventors. 

In reference to Florida Prepaid, the Kagan opinion reminds us, “Congress, we observed, ‘did not focus’ on intentional or reckless conduct; to the contrary, the legislative record suggested that ‘most state infringement was innocent or at worst negligent.’” Those data are not sufficient to circumvent the sovereign immunity. But that was then.

Especially with regard to works protected by copyright, digital technologies have changed the landscape considerably since 1990—even since 1999. Consequently, State actors (e.g. State universities) have both new means and new motives to infringe more frequently and more harmfully than the pre-digital age. Seemingly aware of these contemporary realities, the Supreme Court’s discussion of Allen v. Cooper connotes discontent with its unavoidable conclusion.

The Court Rules Justly But Hints Justice Is Not Served

The majority opinion written by Justice Kagan, and joined by Roberts, Alito, Gorsuch, Sotomayor, and Kavanaugh, with Thomas, Breyer, and Ginsburg concurring, was bound by precedent, namely Florida Prepaid. Allen’s appeal to the CRCA could not hope to overcome the principle of stare decisis, let alone in a matter that sets so high and precise a bar for setting aside states’ rights. Nevertheless, the opinions of the Justices not only present a roadmap that Congress might follow to seal the sovereign immunity loophole for copyright (and patent) owners, it practically calls upon Congress to do so. The Kagan opinion asks…

“All this raises the question:  When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. And the Fourteenth Amendment bars the States from “depriv[ing]’ a person of property ‘without due process of law.’ … So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause.” (citations omitted)

Then, in a passage that all but elbows the IP Subcommittee in the ribs …

“Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries—and of creating a legislative record to back up that connection. But going forward, Congress will know these rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

This less than subtle overture to the legislature was one of two points of moderate dissent by Justice Thomas, whose concurring opinion admonished the Court to refrain from advising Congress on the authorship of future legislation. But writing almost the opposite view, the concurring opinion by Justice Breyer, and joined by Justice Ginsburg, laments the unavoidable conclusion necessitated by law, if not by principle. “That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss,” the Breyer opinion declares. 

Amiss indeed. From the moment Madison and Pinckney drafted the IP Clause, it cannot have been imagined, let alone desired, that the individual States would be left free to appropriate intellectual property from individual citizens. After all, it was a State legislature, in the Massachusetts copyright law of 1786, that declared, “As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly a man’s own than that which is produced by the labour of his mind.”