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Copyright Infringement on Instagram

15 May 2019

From IPKat:

Pop star Ariana Grande is the latest celebrity to be sued for posting a picture of herself on her Instagram page; (including Jenifer Lopez, Jessica Simpson, Khloe Kardashian, Gigi Hadid, designer Jonathan Simkhai and American footballer Odell Backham).

In August 2018, Grande posted a picture of herself oh her Instagram account, where she has 154 million followers, carrying a see-through bag that displayed the word “Sweetener”, the name as her fourth studio album. The caption on the post read: “Happy Sweetener Day.” The post received more than three million likes before it was removed.

. . . .

Plaintiff Robert Barbera – a New York based photographer – brought an action, in the US Southern District Court of New York, for copyright infringement under Section 501 of the Copyright Act and for the removal and/or alteration of copyright management information under Section 1202(b) of the Digital Millennium Copyright Act.

Barbera alleges that Grande made an unauthorized reproduction and public display of two copyrighte protected photographs – of herself, owned and registered by Barbera – when posting them on her Instagram page. Grande had not licensed or been authorised to use the photographs, which therefore constituted an infringement of Plaintiff’s copyright (sections 106 and 501 of the Copyright Act, 17 U.S.C. §§ 106 and 501). The Plaintiff argued that these acts of infringement were “willful, intentional, and purposeful, in disregard of and indifference to Plaintiff’s rights”. As a result, Barbera seeks monetary relief by way of an account of profits pursuant to 17 U.S.C. § 504(b) for the infringement.

Furthermore, Barbera sets out in the complaint that Grande intentionally and knowingly removed copyright management information identifying him as the photographer of the photograph, without the knowledge or consent, in violation of 17 U.S.C. § 1202(b). Therefore, Barbera argues that Grande uploaded the infringing photograph intentionally, knowingly and with the intent to induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyright in the photograph.

. . . .

The case follows the pattern of celebrities being sued in the US for posting images of themselves on their social media channels. Most of these have settled out of court, except for in the case of GiGi Hadid . . .  where the model is being pursued for posting an image of herself on her Instagram account, for the second time. Hadid appears to be attempting to put a stop to these types of cases, arguing that the complaint is meritless, a misuse of the Copyright Act and nothing more than an effort to extract money in the form of a settlement from her, to avoid the cost of litigation.

. . . .

Hadid is also putting forward other arguments; that her re-use of the image falls under fair use and in any event the photograph may not be subject to copyright protection since it was simply a quick shot, in a public setting, with no attempt to convey ideas, emotions, or in an way influence pose, expression or clothing. This is an interesting argument that this Kat ponders often about the threshold for originality in photographs in the digital age and on social media. The skill, labour and effort / intellectual creation involved in taking a photograph is different now that technology can assist in the capturing and editing of the image, coupled with the rise in sharing images on social media and ownership of enabling devices, photographs are more common and the purpose of the image has shifted, in certain circumstances, from capturing a moment to a form of communication (e.g. here’s what I had for dinner on a Snapchat story). In light of technology-enabled-creativity is the threshold for an original copyright photo too low?

. . . .

In a letter to Judge Chen of the US District Court, dated 1st April 2019, Hadid’s counsel also appeal to the moral arguments and issues of personality rights stating: “It is an unfortunate reality of Ms. Hadid’s day-to-day life that paparazzi make a living by exploiting her image and selling it for profit” and that the case demonstrates a rising trend in photographer/agencies seeking monetary damages from celebrities after they re-post images of themselves that they find already available online. The problem with this argument is, of course, that just because something is online doesn’t mean it is freely available to use. Although I do sympathise with the inconsistency of it all – since Hadid screen-grabbed the image from a fan page who the copyright holder is unlikely to pursue.

Link to the rest at IPKat

Even though he is a (very) amateur photographer, PG finds some sympathy for Ms. Hadid’s moral arguments.

While the photographer had his camera set to capture an image that was properly exposed, in a modern camera, this setting could be for the camera to determine the best exposure for the photo or a setting the photographer had decided on for a photo he took several months ago and had never changed during the tens of thousands of exposures he had made since that time.

Perhaps the photographer framed the photo in a particular manner, but it is quite likely the same way the photographer frames all of his celebrity photos or the framing could have been a crop performed by an online publication to which the photographer sold rights to the image.

If the image the photographer produced was almost indiscernible from one that could have been made by a spectator with an iPhone at the same location, is the photographer creating anything worthy of copyright protection?

Does allowing the photographer to sue the celebrity based upon this photo, “promote the progress of science and useful arts” (Article I, Section 8, Clause 8, United States Constitution)?

As the OP indicates, is the use of the photo of Ms. Hadid on her Instagram account “fair use” of the photo by her?

Does it matter that the photographer took the photo without the permission of Ms Hadid?

Copyright/Intellectual Property

9 Comments to “Copyright Infringement on Instagram”

  1. I’m with the photographer(s) here. I’m not an attorney, especially not an IP attorney. But I have been a pro photographer. Responding to PG’s take on things (block quoting the latter questions he poses):

    If the image the photographer produced was almost indiscernible from one that could have been made by a spectator with an iPhone at the same location, is the photographer creating anything worthy of copyright protection?

    Of course he is. The fact that the photograph was used by the celebrity proves that. If the photo were not “good,” it wouldn’t have been used.

    Does allowing the photographer to sue the celebrity based upon this photo, “promote the progress of science and useful arts”….

    What does that have to do with it? Copyright infringement is based on impermissible use, is it not? Infringement “occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.” (USPTO) The photographer is the copyright owner (unless it’s Work for Hire). Not getting his/her permission is infringement and is open to legal remedies.

    As the OP indicates, is the use of the photo of Ms. Hadid on her Instagram account “fair use” of the photo by her.

    Isn’t the photo *of* her and not *by* her? Assuming the former, there are “exceptions” to copyright protection for certain uses: criticism comment, news reporting, teaching, scholarship, and research. And there are four factors used to evaluate if fair use applies. If Ms. Hadid’s use qualifies, then OK. If not, tough luck.

    Does it matter that the photographer took the photo without the permission of Ms. Hadid?

    Nope. She’s a public personage. There is no expectation of privacy *if* the person/subject is in public. If she’s in her backyard sunbathing nude, that’s a different issue, which doesn’t seem to be the case here.

    • NOTE: I’m coming off a little snarkier than I intended. Sorry about that.

      • Don’t worry, Harald. I sometimes come off as a little snarkier than I intended as well.

        I think you’re correct about the application of current copyright law and public figure laws to the situation in the OP.

        However, my speculations are based more on whether this case indicates a need to reexamine those laws.

        My reference to “promote the progress of science and useful arts” relates to the original rationale behind copyright law.

        Presumably, the drafters of the Constitution might have regarded the use of copyright in a manner which did nothing to “promote the progress of science and the public good” as not falling within the scope intended for the protection of creative works.

        • OK, PG, but you’re going to have a hard time convincing me that celebrity self-promotion is Progress or a Useful Art or a Public Good. 😉

          • Felix J. Torres

            By increasing their visibility the “celebrity” increases the value of the paparazzi’s photos as well as their own employment prospects. Sounds like fair use to me. 😉

  2. “Even though he is a (very) amateur photographer…”

    How so?

    I continue to photograph manually, as many “modern camera[s]” and professional DSLRs’ automatic exposure settings can still(!) be fooled by high contrast lighting and/or very light- or very dark-toned picture scenes.

    “Does allowing the photographer to sue the celebrity based upon this photo, “promote the progress of science and useful arts” (Article I, Section 8, Clause 8, United States Constitution)?”

    Do (super) famous social media influencers “promote the Progress of Science and useful Arts” when they (willfully) exploit creative media, without a license, and commercialize it to their Instagram pages that attract millions and millions of followers?

    Do social media influencers “promote the Progress of Science and useful Arts” when they allegedly remove, cover-up, or change Copyright Management Information (CMI) to hide their (willful) copyright infringement actions?

    “Does it matter that the photographer took the photo without the permission of Ms Hadid?”

    If you’re in a public place where you have no expectation of privacy, then you should expect to be photographed/recorded continuously; you may be displayed in non-commercial, non-defamatory media.

    Easy Solution: Celebrities and others can simply contact the licensor + negotiate a license to use copyright-protected content in their social media (commercial) campaign/s. Develop business relationships with the photo/videographer. Now everyone wins, and so does the Constitution’s “to promote the Progress of Science and useful Arts” clause!

    • Sorry if my wording was ambiguous, CMI. I was referring to myself as “a (very) amateur photographer” who was expressing an opinion about the use of copyright as described in the OP by a professional photographer.

      If social media influencers are not claiming any copyright to photos taken by others, the “promote the Progress of Science and the useful Arts” rationale cited by the drafters of the US Constitution to protect those who create works – artists, photographers, authors, etc. – would not seem to apply.

      I don’t believe that Ms. Hadid’s argument that her use of the photo in question is correct is based on any sort of promotion of progress, etc. Instead, her argument is that what the photographer produced either should not be protected by copyright or that her use of the photo is permitted by Fair Use, which would give her the right to use the photo in the manner she did without violating the photographer’s copyright in the photo.

  3. [looks up what an Ariana Grande might be]

    Okay, she does concerts and makes videos. She presumably has an agent or business manager. It’s possible she managed to tune out any advice about intellectual property and copyright, but she probably has gigabytes of stills and video of herself on her own computers; if not, her manager or agent certainly should. Instead, she went out of her way to use an image belonging to someone else.

    On the information as presented, I’m not feeling any sympathy for her.

    • Felix J. Torres

      It is pretty clear this isn’t about her not having other images to use. She did it on purpose to get sued. She may be misguided but the intent is clear: she wants to strip paparazzi of control over celebrity photos. It might disincentivize the hyenas from hounding her all the time.

      If she can’t own her images nobody else should.

      Celebrities and paparazzi have been at war for decades. Copyright is just another battlefield.

      She picked this fight on purpose: she can easily afford the legal fees, she has nothing to lose, and who knows, maybe the horse will sing.

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