By: Ceej Ntsiu
Picture the scene: you are walking down Oxford Street in London and you just so happen to stumble across your favourite celebrity walking out of a shop. The first thing that many of us would do in that situation would be to take out our phones and take a photograph of that celebrity. The second thing that many of us would do would be to upload that photograph on the various social media platforms that we use. In this globalised day and age, it would not be surprising if that photograph came to the attention of that celebrity, who might then wish to upload it on to their own social media pages because they find it aesthetically pleasing. These kind of scenarios have given rise to a somewhat ironic form of lawsuit. Copyright infringement claims are being issued against celebrities for using photographs of themselves on social media platforms.
In 2017, Khloe Kardashian was sued for copyright infringement after uploading a photograph of herself going to dinner in Miami on her Instagram page without first gaining consent from the photographer of that photograph[1]. In a more recent case, Ariana Grande was sued for similarly uploading a photograph of herself on her own Instagram page without first gaining the required permission from the photographer of the photograph[2]. Fashion powerhouse Versace has also recently found itself on the wrong end of a copyright infringement claim after the brand uploaded photographs of Jennifer Lopez dressed in Versace at an MTV Video Music Awards after party, without first gaining the permission of the photographer to use those photographs[3].
The three examples above illustrate how copyright protection works. While the above examples pertain to copyright law in the United States, the law in England and Wales works in a very similar way. The main authority for copyright law in England and Wales is the Copyright Designs and Patents Act 1988 (‘The Act’). The Act provides that copyright protection is afforded to photographs as they considered an artistic work. The Act goes on to say that the owner of the copyright in any work is the author. In relation to a photograph, the author will most likely be the photographer as they are the person who has captured the photograph, and as a result, they are considered as the person who has created the photograph. Where an employee takes a photograph in the course of their employment, the employer is said to be the owner of the copyright.
The Act allows the owner of the copyright protected photograph the exclusive right to use that photograph in a number of ways, and it also states that if a person uses that photograph without the owner’s consent, that person is considered to have infringed upon the owner’s copyright. This is where celebrities find themselves in danger of being sued for copyright infringement. While it may logically seem fair to allow a celebrity who is the feature of a photograph to use that photograph on their social media pages, the law does not work in that way. In other words, if a celebrity takes a copy of a photograph taken by another person and uploads it on their social media pages, or any other platform, they will be committing a copyright infringing action pursuant to The Act if they do not have the copyright owner’s permission to use that photograph in that way. If the celebrity had a keen desire to use that photograph, they would need to contact the owner of the copyright to seek a licence (consent) to use the work, which will likely be given in exchange for a sum of money. Failure to obtain that licence may lead to the celebrity having to pay damages to the copyright owner for copyright infringement. Alternatively, if they are extremely lucky, they might be able to use a similar photograph taken by another photographer, who may allow them to use the photograph without requiring payment in exchange for consent.
Critics have argued that the law in this area is increasingly failing to realise the realities of the internet age. Supporters on the other hand, have argued that the law should be left in its current form as it clearly works to protect the rights of artists by allowing them to commercially exploit their copyright ownership. Nevertheless, there is a general consensus that this area of the law is becoming increasingly interesting to practitioners and lay people as celebrities are increasingly finding themselves in the hot seat for uploading photographs of themselves on their own social media pages.
So remember: if you take a
photograph of Beyoncé and Beyoncé wishes to use that photograph, as the owner
of the copyright which subsists in that photograph, you have the right to ask
for a sum of money in exchange for granting Beyoncé permission to use your
photograph of Beyoncé being Beyoncé.
[1] https://www.buzzfeednews.com/article/claudiarosenbaum/celebrities-sued-paparazzi-photos-social-media
[2] http://www.thefashionlaw.com/home/ariana-grande-is-the-latest-celebrity-to-be-sued-for-posting-photos-of-herself-on-instagram).
[3] http://www.thefashionlaw.com/home/versace-is-being-sued-for-posting-jlo-photos-on-instagram).
