Celebrities including Jennifer Lopez, Khloé Kardashian and Ariana Grande have all been accused of copyright infringement after they have posted paparazzi images on their social media accounts. This begs the question: who owns an image of themselves? Should copyright law still apply when the image was taken without the subjects consent?

Here, Chris Robinson, an IP Solicitor at leading intellectual property firm HGF Ltd, gives his take on the current legal position on this question, as well as whether the law needs to be modernised to better protect celebrities affected by this issue and what the impact could be for the paparazzi if this happened…

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In today’s hyperconnected world, celebrities walk a perilous line. One wrong post on a social media platform like Instagram can result in an internet firestorm, decrying them of being guilty of anything from sounding too similar to another pop artist to outright theft of another’s style.

Recently, celebrities have been trending on social media for trying to trademark the word ‘Kimono’ (in the case of Kim Kardashian), and stealing another’s look (in the case of Ariana Grande and Farrah Moan). Things get even more problematic when a celebrity is accused of copyright infringement for posting a picture of themselves.

Some celebrities, such as Jennifer Lopez and Katy Perry, have been accused of copyright infringement recently for taking photos of themselves from the Internet and reposting them. To the average person, the idea that a pop culture figure such as Jennifer Lopez would be infringing copyright by putting up a post on Instagram that featured a photo of themselves is absurd. The law, however, sees it differently.

The current legal position

In the UK, the law on copyright provides that the author of the work (the photographer) is the owner of a picture they have taken (s11 Copyright Designs and Patents Act 1988), unless they are an employee or there is some other agreement in place which affects ownership. For example, if the photographer has signed an agreement which transfers the ownership of the photo to a third party. The fact that a celebrity is the focus of the photograph is irrelevant.

For instance, if a photographer working for themselves takes a photo of a popstar walking down a red carpet, the owner of the photograph will be the photographer themselves. The celebrity cannot stake a claim in it from a copyright perspective, simply because the photo is about them. Therefore, if they share the photograph on Instagram, the celebrity will be infringing the photographer’s copyright in the image. In the UK ignorance is not a defence to copyright infringement.

Although the publication of a photograph may be considered an invasion of privacy in certain circumstances (for example, photos of Naomi Campbell with accompanying text indicating that she was attending an AA meeting), where private information is communicated, however, this will not affect the ownership of copyright in the image of the celebrity.

Should the law be modernised?

Since the advent of social media platforms, such as Facebook and Instagram, photographs have been shared countless numbers of times by individuals without the consent of the copyright owner. This has presented problems for copyright owners from a control perspective.

Some commentators feel that the law should allow an exception in these cases – permitting the subject of photographs to use them without falling foul of copyright legislation. Arguments on the side of modernising the law include;

• Images of celebrities are often taken without permission. Why should a photographer be able to own the copyright in an image of a celebrity who has not allowed them to take the image? Further, the celebrity will have spent time and expense in curating their own style and image which forms the subject of the photograph and therefore the value of it.
• Given that many photographs are reposted and circulated countless times, it can be impossible in some circumstances to find out who the copyright owner is. Without a knowledge of copyright law, restricting what individuals are able to post online would be seen to be unfair and draconian.
• In the same way a celebrity can stop others from using intellectual property (such as their name, if trademarked), or image likeness, celebrities should be able to control documentation of their public appearances and use such images as they please.
• Celebrities consider the use of someone else’s photograph to be almost a form of flattery – that the image is worthy enough for their social media accounts. This in turn will help the photograph owner, potentially securing them more work and boosting their business.

What about the hard-working paparazzi?

On the other side of the argument, the idea that an individual should be able to use another’s intellectual property is deeply unfair, preventing hard working photographers from making a living and licencing such works. Arguments against allowing the use of photographs in this way include;

• The fact the photograph represents the hard work of the photographer. They have invested in camera equipment, travel expenses and the time used in taking the photograph. They should be compensated accordingly.
• Celebrities promote themselves through public appearances and the photographs themselves. Both of these activities generate revenue for the celebrities, so why should the photographer be denied their licence fees.
• The Internet is a vast source of information, therefore a celebrity or the team working for them can easily find out the owner of the image in many instances. Some photographs also carry watermarks or similar data identifying the owner which can solve this problem instantly.

Whether the law will be amended to allow an exception for individuals posting images where they are the subject remains to be seen, and given this, individuals should be extremely diligent to ensure that they own the copyright in any images they are posting, otherwise they may find themselves the subject of a claim for copyright infringement. Indeed, such claims against celebrities are being reported daily and the prevalence of such claims may lead to pressure in terms of legal reform, or at least stricter ways of how celebrities and the teams working for them manage the content they use.

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