Legally speaking, there is definitely such a thing as bad publicity. Instagram, the social media platform of choice for designers, models, photographers, makeup artists, influencers and other fashion and beauty figures — not to mention actors and musicians — is a hub of self-promotion, with users posting an estimated 4.2 billion “likes” to the site per day.
But as brands and celebrities aggressively ratchet up their social media presences, Insta-lawsuits over copyright and the right of publicity have proliferated.
In 2017, U.K.-based Xposure Photos Ltd. filed a complaint against Khloé Kardashian, who had removed a copyright credit and then shared with her Instagram followers a paparazzi shot of herself going to a Miami restaurant. In October, Eva’s Photography Inc., a Queens, N.Y.-based photography company, filed a copyright complaint against Fenty Corp., the fashion corporation started by Rihanna, for the unauthorized use of a picture of model Gigi Hadid in Fenty attire. The action was dismissed in early December after the parties reached a private settlement agreement.
That same month, paparazzo Robert O’Neil filed a lawsuit against model Emily Ratajkowski for her use on Instagram of a picture he had copyrighted. The Liebowitz Law Firm representing O’Neil had also represented Eva’s Photography and penned copyright complaints against the Jonas Brothers, Justin Bieber and Ariana Grande. According to legal news site Law360, founding attorney Richard P. Liebowitz has filed more than 1,600 copyright lawsuits in the past four years, leading one New York judge to call him a “copyright troll.” In 2018, Slate magazine dubbed Liebowitz a “walking lawsuit factory…[and] the best hope for photographers to get paid.”
Susan Scafidi, a law professor at Fordham University and the founder of the Fashion Law Institute, highlighted two blind spots many brands share when it comes to Instagram posts. First, social media marketing teams are often composed of “digital natives” for whom posting and reposting content is intuitive — and not posting is counterintuitive.
“In some ways, you have to ask your media staff to go against their own experience: throw out all of your basic instincts and start being very cautious,” she said. Second, “[c]ompanies often think posting something factual is fair game, because after all, news organizations do it. But they’re in a different category,” she continued. While the legal concept of “fair use” protects news reporting from copyright claims, the defense is unavailable to brands promoting their products. “That’s just plain old unpaid advertising,” she said.
Fabio Bertoni, general counsel at The New Yorker, said before posting anything to corporate social media accounts, brands should consider the purpose of their content. “Is it to take a stand and enter into a debate? Or is there a commercial motive, to enhance the brand?” he said.
“The distinction from a First Amendment perspective is between what’s editorial and what’s commercial content. The problem with a lot of these brands is that they don’t have any editorial function, and everything they do on social media is essentially advertising,” he noted. While commercial speech has some First Amendment protections, those are substantially weaker than what the law affords to news and commentary.
Brands should also stay alert for updates in the law, Bertoni said. “There have been changing decisions about the embedding of images,” he cited as an example. “Some courts have recently held that it’s infringing, but previously it was OK.”
Terrica Carrington, vice president of legal policy and copyright counsel for the Copyright Alliance, said the organization, which represents a range of creative professionals, hears from many photographers who are frustrated by the ease with which their work travels online without attribution. “The only way to have a marketable career today is to be digital,” she said, noting that photographers increasingly rely on platforms such as Instagram to attract new business and showcase their work. When brands or celebrities repost images of their own products or portraits without licensing them from photographers, she added, they’re taking for free what they ordinarily would have commissioned. Cropping out copyright watermarks is especially harmful, Carrington said, because it severs the connection between the photographer and the picture. “Once that photo is on the Internet, it’s gone,” she said, referring to licensing opportunities and new clients.
Copyright law protects original creative works fixed in a tangible medium of expression, which is a formal way of saying the law protects physical things, including photographs, but not the ideas or inspiration behind them. Copyright ownership comes with a bundle of exclusive rights, including the right to license a work and control its distribution and public display, during the author’s life and generally for 70 years postmortem. When photographers register their copyright in photographs, they can seek statutory damages for infringement that run from $750 to $30,000 per violation and can reach $150,000 per violation if the infringement is “willful.”
The Copyright Alliance’s membership roster includes a variety of photographers, including the Professional Photographers of America, or PPA, and the American Society of Media Photographers, or ASMP. “The PPA tells us that an average photographer makes $34,000 a year, and that’s honestly on the decline,” Carrington said, explaining that the ASMP cites an average annual salary of $50,000 for its members. Without licensing fees, “certain creators can’t afford to be professional photographers anymore,” she added.
While the publicity that can come from a Kardashian sharing a picture may be payment enough for some photographers, the copyright system gives them a choice. “I always go back to the idea that it should be up to the artist,” Carrington said.
To avoid copyright snafus, she said brands should ask their legal departments or lawyers to create guidelines tailored to company needs. Carrington also recommended working with reputable stock photography web sites, and always checking the parameters of image licenses, which can be complex, limiting usage to a particular timeframe or type of editorial publication.
Even when photographs have been “cleared” for copyright issues, if they feature recognizable individuals, they may raise issues of publicity and privacy rights if brands post them on social media. These are separate from copyright, and far messier, owing to jurisdictional differences in approach.
To give just two examples, in New York, home to dozens of major media corporations, these rights are personal, protecting individuals from injury when others intrude on their privacy or use their “likeness” commercially without authorization. But whereas New York’s rights disappear once an individual has died, in California, a state with a famously high concentration of movie stars, the right of publicity is a property right that survives an individual’s death, which means it can be passed down as part of an estate and asserted for 70 years.
“The right of publicity is essentially a hybrid, falling on the border between privacy and property. I would crystallize it as a ‘my image, my choice,’ law,” said Scafidi, noting that the lack of a federal right of publicity and the tremendous variation among states and internationally make compliance challenging. “If you’re looking for a rule of thumb, it would be this: the closer your use comes to advertising, the more likely you are to run afoul of the right of publicity in some jurisdiction.”
Hypothetically, Scafidi said a fashion designer attending an event could probably take a selfie with a celebrity and post it to a personal social media account without seeking permission. “If it’s the designer’s own account, there’s probably some kind of tacit permission involved, and it would be unusual to see a cause of action in this area,” she noted.
However, she cautioned that reposting the image to a corporate brand account may cross a commercial line. “Some of this is customary and relational and a gray area, but it’s much better to be safe than sorry,” she said, emphasizing the need for conservatism, particularly when posting pictures of people whose images have developed commercial value.
“It’s a close call. Some of this is sort of a risk-benefit analysis,” said Bertoni. He added that the failure of many brands to seek permissions for their content doesn’t make the practice OK — and that when lawsuits do come around, they can be very costly.
Cynthia Martens is an associate at The Nilson Law Group, PLLC in New York. She was previously a WWD correspondent in Milan.