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.
