By: Ariane Monaco
Paparazzi are stepping out from behind the cameras and into the courtroom. Paparazzi are suing celebrities who post unlicensed pictures on their social media accounts for copyright infringement. This is a role reversal for the two parties because usually celebrities are the parties initiating the lawsuit with paparazzi for defamation and privacy-related claims.
But how is it that celebrities are getting in trouble for posting pictures of themselves? Even though the pictures the celebrities are posting are pictures of the celebrities themselves, a copyright issue arises because the celebrities had no part in the staging or execution of the photograph.
According to the Copyright Act, “the owner of copyright under this title has the exclusive rights to . . . display the copyrighted work publicly.” Because the copyright owner has the exclusive right to display the work publicly, nobody else is allowed to display the photo without permission or a license. To display a work means to show a copy of it, either directly or using a device. Public display means “to display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family is gathered.”
In these circumstances, the copyright owners are the paparazzi, giving them the exclusive right to display the photograph, not anyone else including the celebrities in the pictures. Even more so, the public is anyone who has access to the celebrities’ Instagram or other social media accounts assuming they are outside of circle of family.
One celebrity involved in this type of lawsuit is singer, Jessica Simpson. Simpson posted a photograph of herself leaving a hotel onto her social media accounts. Splash News licensed the photos of Simpson leaving the hotel to The Daily Mail who published the photo on its website. Simpson took the photo from The Daily Mail without permission and posted it onto her social media platforms Twitter and Instagram. Not only did she post the photograph without approval, the photograph Simpson posted removed the Copyright Management Information (CMI) that was included on the original photograph.
Included within the copyright infringement action, the complaint addresses that Simpson removed the CMI from the picture. This would include any type of information posted with the work such as a title, author’s name, copyright owner’s name, performer’s name, director’s name, writer’s name, terms and conditions for use of the work, identifying numbers or symbols, or any additional information provided in the Register of Copyrights. Removing or altering this information constitutes infringement. Regardless if Simpson kept the CMI on the pictures, there would most likely still be a copyright infringement action due to falsification of the CMI.
Splash argues in its complaint that Simpson’s Instagram post harmed its ability to profit from the photo. Plaintiff’s lawyer, Peter E. Perkowski, alleged:
Simpson’s Instagram post and Twitter tweet made the Photograph immediately available to her nearly 11.5 million followers and others, consumers of entertainment news—and especially news and images of Simpson herself, as evidenced by their status as followers of her—who would otherwise be interested in viewing licensed versions of the Photograph in the magazines and newspapers that are plaintiff’s customers.
This issue raises eyebrows because nowadays, photos and images are not just being shared by competitor magazines or entertainment news outlets, but they are being shared on personal social media accounts run by celebrities or someone within their circle. Presently, some celebrity social media accounts have millions of followers per account. This type of expansive audience leads to the photo being shared by a “substantial number of persons outside of a normal circle of a family is gathered.”
This type of sharing and distribution leaves the copyright owner without any control over how the photo can further be used, which can greatly affect owners such as paparazzies who make their living taking and selling photographs of celebrities and entertainers. This exclusive right of display and distribution is no longer able to be restored with the particular photo.
The owner of copyright has the exclusive rights to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. However, when anyone, including celebrities, post unwarranted pictures it takes away the copyright owners right to sell or license that picture to other outlets like magazines or internet sites, which ultimately hinders on profits that could have been accrued.
The copyright owner’s exclusive right to distribute copies of the work is circumscribed by the first sale doctrine.  The first sale doctrine allows the copyright owner to sell or dispose of that particular work. This means that whomever buys the particular copy of the copyrighted work is allowed to use or dispose of that particular copy as they wish without worrying about the copyright holder as long as the buyer does not publish or produce other copies of the work.
However, the first sale doctrine does not apply to this case because Simpson did not pay for a particular physical copy. The photo embedded in the lawsuit is a picture that was achieved digitally; therefore, the first doctrine would not apply. Simpson’s permission would have been achieved by obtaining a license for the photo from the paparazzi who took the picture. It has been alleged that Simpson did not pay for any license or seek any sort of permission in regards to the particular photo she copied and posted onto her social media accounts.
But how about Simpson herself? Can she claim copyright protection or ownership for being the main image involved in the picture?
In Toney v L’Oréal USA, Inc, the plaintiff, who modeled for the defendant, contractually authorized her likeness to be use in print advertisements, but sued when the defendant continued to use the photograph of her beyond the contractual period of time. In the holding, the court acknowledged that “a photograph is a copyrightable expression of the person depicted, but the subject matter, or the person, is not independently copyrightable.” Therefore, Simpson would not be able to achieve ownership of the photograph because, even though she was the subject matter, she cannot be independently copyrightable.
If people as subject matter were able to be copyrightable, then models might have copyright protection for all photos taken of them. Typically, models give away their right when they are photographed by means of a signed release. However, there is also a concept called an implied license. Implied nonexclusive licenses are generally “found only in narrow circumstances where one party created a work at the other’s request and handed it over, intending that the other copy and distribute it.” Courts have found the potential availability of an implied nonexclusive license when it was shown that the parties intended that the work would be used for a specific purpose. This depicts the supermodel living where it can be argued that supermodels intend to pose and create an image with the photographer with the intention, and even hope, that the picture becomes widespread and famous. Paparazzies seem to behave more discreetly than in a photoshoot setting where the celebrity typically does not know pictures are being taken of them.
Does Simpson have any sort of possible defenses for her infringement claim?
One of the defenses to a copyright infringement claim is through fair use. To argue fair use, a party needs to assert that the purpose is to criticize comment, report news, teach, for scholarship, or research. The four factors of fair use are purpose and character of the work; nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. Even though there are four factors, all of them need to be considered and weighed in favor of one another.
Subject to the fair use defense, appropriating an existing photograph is likely to infringe on the photographer’s right to control the reproduction of that photograph, as well as the right to authorize the creation of derivative works based upon that photograph.
In this case, Simpson will most likely not be able to have a fair use defense for her infringement of copyright. The Paparazzi owned and registered that picture with the Copyright Office and Simpson used that picture without permission or a license. Given the circumstance of the picture, Simpson was displayed in public, and therefore she probably does not even have a privacy counter claim against the Paparazzi given that she was just walking out of a hotel in public sight. If found guilty, Simpson can owe any amount from $750 to $30,000, or up to $150,000, if found for willful infringement. 
 See Ashley Cullins, Paparazzi vs. Stars: Who Owns That Instagram Pic?, The Hollywood Reporter (Feb. 8, 2018, 6:00 AM), https://www.hollywoodreporter.com/thr-esq/paparazzi-stars-who-owns-instagram-pic-1081902.
 See Jennifer Kline, 7 Celebrities Who Got SO Pissed, They Sued the Paparazzi, Clevver (February 16, 2016) http://www.clevver.com/celebrities-who-sued-the-paparazzi-photographer-lawsuits/.
 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 55 (1884) (holding that photographer achieved copyright protection and took all the required steps by “selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression”).
 17 U.S.C. § 106(5) (2002).
 18 C.J.S. Copyrights § 60 (2018) (“In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, exclusive rights include the right to display the copyrighted work publicly”).
 Brent A. Olson, 20A1 Minn. Prac., Business Law Deskbook § 15:30 Exclusive rights—Right to display the work publicly (2017).
 See Marie-Andree Weiss, Paparazzi’s Photographs Protectable by US Copyright, 1709 Blog, (February 4, 2015, 6:21 PM) http://the1709blog.blogspot.com/2015/02/paparazzis-photographs-protectable-by.html.
 See Olson, supra note 7.
 Michael Zhang, Jessica Simpson Sued for Posting Paparazzi Pic of Herself on Instagram, PETAPIXEL (Jan. 27, 2018) https://petapixel.com/2018/01/27/jessica-simpson-sued-posting-paparazzi-pic-instagram/.
 Amended Complaint at 14, Splash News and Picture Agency, LLC v. Jessica Simpson, Reality TV World and DOES 1, No. 2:18-CV-00591-R-JEM, (D. Cal. Jan. 23, 2018) [hereinafter Amended Complaint].
 17 U.S.C. § 1202 (1999).
 See Amended Complaint, supra note 14, at 25.
 See Zhang, supra note 10.
 See, e.g., Amended Complaint, supra note 14; see also Avery Hartmans, Here are the 10 Most-followed Instagram Accounts in 2017, Business insider (Nov. 29, 2017, 1:01 PM) http://www.businessinsider.com/instagram-top-10-people-2017-2017-11.
 See Stone, supra note 8.
 See Jean G. Vidal Font, Sharing Media on Social Networks: Infringement by Linking?, 3 No. 2 U. Puerto Rico Bus. L.J. 255, 259 (2012).
 See Peter L. Skolnik, Navigating Social Media Copyrights, 284 N.J. Law. 5, 6 (October 2013) (“When you make something publicly available on the Internet, it becomes practically impossible to take down all copies of it”).
 17 U.S.C. § 106(3) (2002).
 See Brent Furdyk, Jessica Simpson sued for Posting Paparazzi Photo of Herself on Instagram, Global News, (Jan. 24, 2018, 8:55 PM) (“Splash News contends that Simpson sharing the photo on social media took away potential revenue that could have been generated by licensing the photo to other media outlets”) https://globalnews.ca/news/3985969/jessica-simpson-lawsuit-paparazzi-photo/.
 Olson, supra note 7.
 17 U.S.C. § 109(a) (2008).
 Kenneth B. Sills, 50 Tex. Jur. 3d Literary and Artistic Property § 7 First-sale doctrine (January 2018).
 See Amended Complaint, supra note 14, at 16.
 See id.
 R. Anthony Reese, The First Sale Doctrine in the Era of Digital Networks, 44 B.C. L. Rev. 577, 614 (2003) (“The copyright owner might disseminate the work pursuant to a license, under which the copyright owner purports to maintain ownership of the copy, mere possession of which is transferred to the licensee”).
 See Amended Complaint, supra note 14, at 16.
 Toney v. L’Oréal USA, Inc., 406 F.3d 905, 908–09 (7th Cir. 2005).
 See id.
 See When Photographers Need a Photo Release or Use of Likeness, Rocket Lawyer (2018), https://www.rocketlawyer.com/article/when-you-need-a-photo-release.rl.
 Elga A. Goodman, 49 N.J. Prac., Business Law Deskbook § 11:4 Ownership of a Copyright (2017).
 17 U.S.C. § 107.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).
 Michael S. Oberman & Trebor Lloyd, Copyright Protection for Photographs in the Age of New Technologies, 2 B.U.J. Sci. & Tech. L. 10 (1996).
 See Amended Complaint, supra note 14, at 14, 16.
 Photographers Rights – Know your Rights!, Premium (May 26, 2016) (explaining how photographers can photograph anybody who’s is in public view and doing anything not considered private and not have a privacy issue).
 17 U.S.C. § 504(c)(1)(2) (2010).