The Rise of Paparazzo v. Celebrity Lawsuits: Is Copyright Law Fair

Amanda Gonzalez Burton is a J.D. candidate, 2021 at NYU School of Law.

It’s a tale as old as time. Girl dates boy. Boy gets photographed by a paparazzo while walking down the streets of New York City. Girl posts the photograph of boy to her Instagram story. Girl’s 49.8 million followers, including its original author, view the photograph. Girl gets sued for copyright infringement.

Gigi Hadid, and other celebrities, are being sued again and
again for
the unauthorized use of paparazzi photos in violation of the Copyright Act, 17
U.S.C. §§ 101.

But is this really fair?

On the one hand, few people will empathize with a 24-year-old
international supermodel who pulled in $9.5
million last
year from brands like Fendi, Versace, and Prada, just
for existing in her current physical form. Ivan Bart, president at IMG Models,
whose agency represents Hadid, told Forbes,
“Your social media page is your magazine of your life, so how you
represent yourself matters.” Thus, Hadid must internalize the cost of her
fame. Her Instagram posts serve a commercial purpose and she should budget for
this paparazzi expense for as long as her fame has value.

On the other hand, can we just let the girl
live a little? Take this photograph of her former boyfriend, for example:

image via complaint

Hadid adds stickers, text, and animation to decorate the
post. She frames the photo with the words “muze” (as in “muse”)
and “my manz” (as in “my man”). This post is consistent with
American 20-something culture and the impulse to express via Instagram – from
the coordinated color scheme and the salivating lips “sticker,” to the
animated cartoon girl with bulging heart-eyes in the corner. Not to mention the
overuse of “z” for absolutely no reason. This is Instagram artwork,
and Hadid is a creative. The word muse, at least in some contexts, literally
means a person
or personified force who is the source of inspiration for a creative artist. And what is the central purpose
of copyright law if not to encourage creative expression?

So what’s the problem? In Hadid’s case, part of the
problem is that Zayn Malik actually was her man[z] and her audience is
far-reaching. My friends reproduce and publicly display copyrighted photo
without authorization (or crediting the author) on a daily basis, and yet none
of them would be legally pursued. Robert O’Neil, the owner of the photo above, is
seeking $150,000
in statutory damages from Hadid.

One wonders if there were legs to Odell
Beckham’s claim against Splash News and Picture Agency. In
that lawsuit, Beckham alleged Splash was attempting to “extort” him into paying
$40,000 after he posted a photo of himself on his Instagram account.
Ultimately, they settled out of court.

The other problem is that Hadid used someone else’s photo
in her mu[z]ey story post, without permission. And even if this particular Instagram
post passes the four-prong Fair Use test,
the majority of photos in paparazzo v. celebrity actions likely do not. In this
context, is copyright law protecting the progress of science and useful arts or
paparazzi business models? Consider that some cameras take 14 photos per
second. Who has the incentive to create and innovate based on
the protections copyright law gives to paparazzi photos? Or perhaps paparazzi
(and our cultural obsession with celebrities) are what gave rise to the
innovation that now makes it possible for a photographer to “create” 840 photos
per minute on any given day.

The paparazzi may be the only people who garner less
empathy than the 5’10”, 2016 International Model
of the Year from Malibu, California, who has appeared on Vogue magazine
covers 35 times. The paparazzi likely don’t care about attributing credit to
the original author of the photo. Last year, Hadid found a photo of herself on
Twitter which had already been paid for and distributed by press-outlets. She
later shared the photo on her Instagram. The paparazzo who took the photo
pursued Hadid in a legal action. Hadid states that she would have been “happy
to tag and give credit.”

Unlike other areas of copyright law where shaming the wrongdoer is effective,
there are not self-correcting mechanisms built in here. A paparazzo does not
want to “shame” wrongdoers into not violating copyright. They want the
opposite: to tempt wrongdoers into violating in order to get paid.

Is the 43-year-old Copyright Act the Myspace of social
media in the age of Facebook?

Leaving the legal question of right of publicity out of
the equation, are paparazzi photos worthy of the same copyright protection as,
for example, photojournalist Alfred Eisenstaedt’s iconic V-J Day in Times Square photo?
Or are there different types of photos that are more like basic building blocks
of expression than they are creative works? Just as ordinary dance movements
can’t be copyrighted because it would stifle the creation of new choreography,
perhaps ordinary paparazzi snaps can’t be copyrighted because it chills social
content creation in this photo-centric age of expression.

What would happen if copyright law changed to give less
protection for paparazzi photos? What kind of activity would this burden?
Paparazzi would have to eliminate their statutory damages/settlements line item
from their income statement, but there would still be incentives to stake out
celebrities in hopes of capturing a money shot sellable to news outlets. Perhaps
fewer people would pursue a career in celebrity stalking if they knew sharing
those photos on social media is Fair Use.

The unauthorized use of paparazzi photos on social media
is not permitted under current copyright law, but the ways photos are taken and
shared as a means of social expression is dramatically different today than in
1976 when the Copyright Act was written. It might be time to think about the
outdated aspects of copyright law.