Even celebrities could benefit from some basic intellectual property law knowledge. We have previously reported on the claim against GiGi Hadid regarding a photograph she used of herself without securing the permission of the copyright owning photographer. The case received widespread attention and comment and one might have expected celebrities or if not celebrities their PR and social media teams to take note. Namely that you don’t have the right to publish any photograph of yourself you like the look off and you do not as the subject of the photograph own the copyright in it. That rests with the photographer.
The latest celebrity to be caught out and sued by a paparazzi photographer is none other than Victoria Beckham who is on the receiving end of a new copyright infringement lawsuit after posting a photo of herself to her Instagram. According to the claim filed in New York federal court by Felipe Ramales, neither Beckham or any of her corporate entities sought his permission before posting the image of herself on her Instagram account.
As the claim is being brought in New York the stakes are high. Photographers who have registered their work with the US Copyright Office can claim up to $150,000 per work and attorney fees. In the UK compensation for unauthorised use of images is awarded based either on the loss of commercial fee to the photographer for the authorised use or a sum to represent the profit to the celebrity for the use. Arriving at a figure is on either basis is often not an easy exercise and cases which have been fought to the end and decided by the courts have been costly for the parties involved, even where the starting point has not been a claim for $150,000 per photograph.
From a copyright perspective these claims present little academic interest. The fact however that the images are of a celebrity, with a right to control their image in certain circumstances, does give cases of this kind a twist. In certain countries including the US, celebrities have the right to prevent use of their images where they object to it irrespective of the fact they do not own the copyright in the photograph. In the UK this right is found within the realms of the law of ‘passing off’. It was used most effectively by Rhianna who was successful in preventing Top Shop from using an image of her on T-Shirts sold in Top Shop Stores. That case depended on Rhianna being able to show that shoppers believed that the T-Shirts were endorsed when they were not and shows that once into the arena of products and merchandising, the celebrity has more control over the use of their image without their consent.
While the photographer will always be able to take a picture of a celebrity and sell it to a newspaper pretty much with impunity, the opportunity for expanded use will depend on celebrity consent. Once again therefore, is there not an opportunity for photographers and celebrities to work together. Is there room for a new type of deal where in exchange for being able to use images of yourself taken by a photographer on your social media you give consent to that same photographer to exploit your image commercially within set parameters detailing the use that each is permitted. The arrangement thereby securing consent and the manner in which the financial rewards from the use will be shared.
Written by Margaret Briffa, Solicitor