“Recent cases should serve as a warning to celebrities. What may seem “fair” to some may not be to others—or at least what’s fair may be disputed.”
As unfair as that may sound to the celebrity, most stars are well-aware of the established law that a photograph—even an unwanted one—can be monetized by the paparazzi.
The law also is clear that, absent permission, the celebrity cannot monetize the photograph herself. Photographs, like other works of art, can be copyrighted by the paparazzi and, as with copyright, the owner possesses the famed “bundle of rights,” including the right to prohibit others from displaying the photograph for money.
But these laws were settled in a pre-social media world dominated by tabloids and celebrity-focused magazines. Now, with stars connecting directly with their fans via Instagram and Twitter, have the rules changed?
Celebrities, Be Warned
What if the celebrity does not sell the photograph or seek to profit from it and, instead, simply posts it on social media for other reasons, such as to emphasize a particularly good or bad day or to make social commentary on overreaching paparazzi? Is that protected “fair use” under the Copyright Act? 17 U.S.C. § 107 (“the fair use of a copyrighted work,. . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright”).
Recent cases should serve as a warning to celebrities. What may seem “fair” to some may not be to others—or at least what’s fair may be disputed. And, in litigation, what can be reasonably disputed is indisputably expensive to defend.
Actress, model, and entrepreneur Emily Ratajkowski is the latest celebrity to face this issue. Ratajkowski became famous after appearing in a 2013 viral music video. More recently, she earned notoriety as a critic of paparazzi culture and the commodification of women. On November 9, she published her first book, My Body, an essay collection about her experience with fame.
In late 2019, celebrity photographer Robert O’Neil photographed Ratajkowski outside a Manhattan flower shop depicting her holding a vase of flowers over her face and upper body. Ratajkowski saw the photograph and posted it on her Instagram Stories account with the caption “mood forever.”
O’Neil sued Ratajkowski, accusing her of violating his protected interest in the photograph. O’Neil v. Emily Ratajkowski et al., Case No. 19 Civ. 9769 (S.D.N.Y.). Ratajkowski invoked fair use. Echoing the legal arguments advanced by her attorneys, Ratajkowski herself wrote in a 2020 New York Magazine essay: “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.”
O’Neil pointed out that Ratajkowski’s Instagram feed boasts 28 million followers and, even if that single post did not charge a fee, the feed itself was a commercial enterprise to advance Ratajkowski’s brand. Every post on her Instagram feed was, in some ways, a commercial and profit-driven product.
In late September 2021, federal judge Analisa Torres in the Southern District of New York rejected Ratajkowski’s motion seeking judgment in her favor on the ground that her “mood forever” post on Instagram stories was fair use as a matter of law.
Judge Torres acknowledged this was a close case for a fair use defense. After all, Ratajkowski posted O’Neil’s photograph on a temporary, non-sponsored Instagram Story with a satirical caption added by Ratajkowski herself. But a reasonable jury could find that other factors in the fair use analysis—including the nature of the copyrighted work and the fact that Ratajkowski used the entire photograph instead of a smaller portion of it—favored O’Neil. Because the balance was not so far in Ratajkowski’s favor, the judge ordered that a jury should make the ultimate decision after a full trial on the merits.
That is bad news for celebrities.
It means paparazzi will be emboldened to bring similar actions, knowing their claims’ settlement values have increased. And a celebrity’s cost associated with defending copyright actions will skyrocket, since they cannot reliably expect to win summary judgment.
Ratajkowski’s case ultimately may reach the Second Circuit for an appellate determination on fair use. It could even go to the Supreme Court. Until then, celebrities should be wary of posting anyone else’s photograph of themselves on their social media feeds.
To help mitigate risk, we suggest stars be mindful of the following “dos and don’ts.”
Transform the photo in some way. Add a meme, quote, GIF, sticker, music, or filter. Build it into an original and longer Instagram Story to be viewed all at once, crop, or make a collage. This strengthens the argument that the use of the photo is a transformative work and social statement.
DO use Instagram Stories, Facebook Stories, Snapchat or an equivalent temporary medium, not posts
The temporary nature of Instagram Stories, which remain available only for 24 hours before disappearing, is relevant to the third factor of the fair use defense, which assesses the amount and substantiality of the alleged infringer’s use. The court in Ratajkowski’s case analyzed and accepted her contention that, because she posted O’Neil’s photograph on her Stories, rather than her main account, the use was less substantial. The Court wrote, “If the Instagram Photograph only appeared for twenty-four hours, it is much less likely that someone might take the Photograph from the Instagram Account rather than licensing it from Plaintiff, compared to that same risk if the Instagram Photograph was permanently on the Instagram Account. Moreover, assuming Ratajkowski wished to critique paparazzi she chose the comparatively insubstantial option of Instagram Stories rather than the Instagram Account main feed.”
DO use Instagram’s “Share to Your Story” feature
A natural tension arises as copyrighted works are shared on social media, since the purpose of a copyright is to protect an author in the event of unauthorized distribution of original works, and one purpose of social media is to foster the unfettered (and sometimes viral) distribution of content to the masses. To mitigate the impression that works are wrongfully copied and give credit where credit is due, celebrities should employ Instagram’s built-in attribution device and share the work to their Story or feed from the original source or her licensee (e.g., the paparazzi’s agency or a publication that has purchased the work).
DON’T try to cash in
Disassociate the photo from any direct commercial exploitation. This may be obvious, but ensuring that the use of the photo is free from commercial purposes is critical to help avoid copyright claims.
DO your due diligence
Ask your media team or PR representative to run a brief, perfunctory check of publicly available copyright records. Evidence of due diligence may show an effort to avoid willful copyright violations. In addition, check other Instagram accounts to see if the photo has already been posted on social media. If the photo is out there—even on the photographer’s own feed—it is likely posted pursuant to the “terms and conditions” of the social media platform, which include an implied license to distribute.
Image Source: Deposit Photos