Tag: Instagram

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.

Getting away with infringement doesn’t mean it’s cool.

Photo by Max Dubler. Used by permission.

Last week, while I was writing my last post about photographer David Slater, a story on PetaPixel was making the rounds.  Written by photographer Max Dubler, the title is a refrain of an all-too-familiar theme.  No You Can’t Use My Photos on Your Brand’s Instagram for Free, says Dubler.

Dubler has carved out a niche photographing the world of downhill skateboarding and reports, “A few days ago an established, successful small longboard brand downloaded one of my pictures from an event in Canada and posted it to their Instagram account.”  It seems as though I see a story just like this posted by photographers at least once a week. Corporate entities use images without permission to promote their brands on social media, but without the slightest awareness that they need permission from the photogrpaphers.  Not only do these appropriations themselves reveal a core dysfunction among business operators, but the smugness with which some of these parties respond shows the extent to which these platforms and the anti-copyright agenda have warped common sense.

Dubler allows riders to share the photos he takes on social media but asks that any business entities that wish to use his images to contact him for permission.  When he wrote to the longboard company to tell them that he charges $25 for social media use of his images (a tiny fee by the way), the company representative wrote, “Seriously? We don’t pay for Instagram shares, and we always give proper credit, I mean, who pays for Instagram shares lol. I will take it off if you wish Max.”  This fairly represents many attitudes out there.  The exchange goes on a bit further with Dubler explaining that the use had already been made and the $25 needed to be remitted; but the company representative ultimately wrote, “Go extort someone else.”

In response to that attitude, here’s a traditional scenario:

If a photograph is registered with the Copyright Office and the photographer is, for instance, represented by a stock company with some legal muscle, the smug business owner—instead of receiving a demand for the pocket-change of $25—might get a bill for like $3,000 along with a letter stating that if the company doesn’t pay that fee, it will be sued for $150,000 in statutory damages for copyright infringement.  At this point, the cocky idiot who wrote the rude “extortion” response would then find out from his own attorney that his company’s infringement is indefensible, and the harsh, $3,000 lesson would be richly deserved. The managers of this company would never use another photo without first thinking “Dude, maybe we need permission.”

Unfortunately, most independent rights holders like Dubler have no practical means for enforcement because the cost of filing a federal lawsuit is extraordinarily high.  This is why it is important for independent creators—perhaps visual artists most of all—to endorse current proposals to create a copyright small claims system.  Without this remedy, it is simply too easy for corporate entities in particular to appropriate work they should be paying for. And some people only ever learn when they feel a little pain for making bad decisions.

Keeping in mind that authors of copyrighted works are also entrepreneurs (usually very small businesses), any other business operator should recognize that using the product of an authors’ labor without permission is both uncool and illegal.  Anyone who runs a business knows what expenses look like and knows that marketing materials are usually an expense. One should assume, therefore, that if the source or legal status of an image is unknown, that it is not just there for the taking.

As Khloe Kardashian’s Instagram infringement story makes clear—and businesses everywhere should note—posting a copyrighted photograph to social media without permission infringes the photographer’s right to reproduce the work and his right to publicly display the work. And if the user removes the rights information from the image, as Kardashian is alleged to have done, that’s another violation of a separate statute.

I understand that social media is a fast-moving, free-wheeling environment where infringements happen all day long; and I sympathize with individuals (not businesses) who inadvertently commit infringements based on well-intended, but false, assessments of fair uses.  I wrote about one friend running into this kind of problem with her blog. In that post and others, I have laid some of the blame on the voices of the anti-copyright agenda for promoting misunderstanding about fair use, which can get independent creators into trouble.

Far too often, though, when creators do enforce their rights, this is characterized by bloggers and the press as an unreasonable imposition on small businesses—thus justifying in one guy’s mind the use of the word extort.  But not only are these loose appropriations frequently committed by companies of every size, it is awfully hard to imagine the same hew and cry ringing out if a company is expected to pay for office supplies or internet access or to advertise with Google. Yet, somehow creative works are assumed to be different. They’re not.

Millions of creative professionals today encounter assumptions that their work should be performed free of charge and/or that work already created should be “shareable” on the internet without permission or compensation.  It is a dysfunctional attitude that devalues human labor, and we are already seeing signs of this corrupt notion manifest in business sectors beyond the creative industries.  In light of some of the predicted effects that automation may have on employment, how we value human labor is one of the existential questions facing the generation called “digital natives.”  In the meantime, any company that just takes without asking really does deserve to get sued. It’s the only way some people learn.

Khloe Kardashian’s Instagram Copyright Mistake

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.