Lens photo by mrbrainous
For all the attention paid to music and motion picture piracy, the most chronically infringed works via the internet has got to be photographs. The speed and volume with which photos are uploaded and redistributed by both commercial and non-commercial users is so constant that it occasionally results in some amusing—if not infuriating—mistakes. Like the time in February of 2013 when the Fox News site posted a photo of newlyweds kissing atop the Empire State Building above a headline that read: To be happy, we must admit that men and women aren’t ‘equal.’ In response, the forces of the internet had a blast letting Fox know that the pair depicted in the image are both women—the first same-sex couple to wed after New York State legalized these unions.
Such gaffes are not limited to people espousing uptight social values, of course; but this kind of mistake says a lot about the use of images today because such a dumb error, presumably made in haste, implies that nobody involved with the Fox story bothered to seek—or probably even consider—permission to use the image. It was taken by photographer Richard Drew and is registered with AP along with a standard description on its web page, so it would be pretty hard to legally license the photo without realizing that it depicts a same-sex couple.
It is an understatement and a half to say that social media platforms have fuzzed-up general understanding of permission to use photographs today, even for certain professionals who should know better. When photography collides with celebrity and social media, though, I guess we should not be surprised that Khloe Kardashian (or someone who works for her) didn’t know that she needed to obtain a license from the rights holder, even to display an photo of herself on Instagram.
The photo, taken by Manual Muñoz, is a fairly typical, professional-quality paparazzo’s capture of Kardashian walking toward camera in 1/4 profile, reportedly heading into a trendy Miami restaurant. The copyright in the image is owned by Xposure Photos UK LTD, which had sold a limited license to the Daily Mail, whence it is alleged that Kardashian copied the photo to her Instagram account without permission and, in the process, removed the rights management information from the image. Thus, Kardashian is potentially on the hook for violating three sections of the U.S. Copyright Act—the right of reproduction (§106(1)), the right to publicly display a pictorial work (§106(5)), and removal of copyright management information (§1202(b)).
The complaint filed by Xposure specifically notes the commercial nature of Kardashian’s use, alleging that “…every one of Kardashian’s Instagram posts is fundamentally promoting something to her 67 million followers.” While commercial vs non-commercial use is not dispositive in determining whether or not an infringement exists, it can factor considerably in the kind of relief a plaintiff may be granted by the court.
Khloe Kardashian is a business, what marketing professionals call an influencer—someone whose social media following is so large that they earn fashion shoots, paid appearances, and endorsement opportunities worth millions of dollars. As such, Xposure would seem to be on solid ground in pursuing the upper limits of relief for damages. Their argument that “every photo promotes something,” should carry considerable weight, even if that something is Khloe Kardashian herself.
The distinction between personal and professional use of a platform like Instagram is something any user, not just celebrities, should more carefully consider. I suspect it’s become so habitual at this point to share images as rapidly as they’re made that even public figures with professional management teams forget that they have the same legal considerations to make before publishing on social media as if they were proposing to publish an old-school print campaign.
Additionally, because platforms like Instagram provide the opportunity for people to create their own celebrity by blurring the line between “private” and “public” moments—for instance, displaying provocative selfies alongside professional fashion photos—mistakes like Kardashian’s are almost inevitable. According to the Wikipedia entry for Kendall Jenner, Vogue dubbed the crossover between social media self-promotion and the world of professional fashion modeling as the “instagirl era.” And as Vanessa Friedman recently noted in The New York Times, being this kind of influencer can come with unanticipated liabilities, like the possibility that the models who helped promote the disastrous Frye Festival may be named in the class-action lawsuit against event organizers.
All prospective instagirls and instaboys, especially those who don’t have Kardashian resources, should remember to consider the rights and implications of a photo before publishing. Anyone using, or hoping to use, social media to grow their own brand as influencers or creators, should be wary of the anti-copyright messages suggesting that these legal considerations are obviated by the relative ease of distribution via digital platforms. The authors of those opinions will not be defending you in a litigation.
Don’t Confuse Copyright With Publicity, News, & Commentary
I caught a piece of a conversation on The Talk about this story, with the celebrity panel largely focusing on the lack of rights enjoyed by public figures. The discussion segued rather quickly from copyright to privacy, commenting on the fact that Kardashian is not allowed to use this image without permission, but then contrasting this fact with the apparent contradiction that she also would have a hard time removing invasive or embarrassing images captured by the types of paparazzi who trade in wardrobe malfunctions and other salacious forms of “news.”
While I personally sympathize with public figures when they’re the targets of cheap, gimmicky invasions that serve only puerile social interest, the fact remains that one price of celebrity is an abandonment of privacy because public figures are—in a first amendment context—always news. Just about any image of a public figure that is legally obtained counts as reportage, protected by the first amendment—even wardrobe malfunctions and other moments of human folly. One may also lampoon or otherwise comment upon a public figure by altering their images, as long as that alteration doesn’t implicate libel. Such alteration could violate a copyright, but it will not have anything to do with the publicity right of the person in the image.
The right of publicity is protected at the state level, hence varying statutes, but the general principle is that no individual or entity may use the likeness of either a private person or a public figure for the purposes of endorsement of a business, a political message, a social agenda, etc. without that individual’s permission. Even users of stock photos should note that there are often separate model releases requiring that licensees get permission from the models for any use that would be considered endorsement.
When it comes to violating the publicity right, the same factor that makes Kardashian’s alleged copyright infringement (i.e. that she’s a famous brand) potentially more expensive would also give her claim more heft if she were to seek damages for unauthorized use of her likeness for the purposes of endorsement. In short, the fact that she is news gives the paparazzo’s photo a market value that she has no right to control or infringe; but at the same time, her likeness is also valuable to advertisers, which she has every right to control and protect. General discussion of theses stories occasionally conflates these principles.