Celebrities have been actively using Instagram to expand their fan bases (and their bank accounts) since its inception in 2010.

Paparazzi are after pieces of the profit pie after a wave of celebrities have been sued for copyright infringement on their Instagram posts.

These famous names include Gigi Hadid, Jennifer Lopez, Khloe Kardashian, Jessica Simpson and even major fashion houses such as Versace.

Ariana Grande, who has 156 million followers, is the latest to be left with a sour taste after a complaint was filed in US District Court of New York by Robert Barbera for copyright infringement.

What was the post?

Grande posted two photos of her taken by Barbera on 17 August 2018 with the caption “happy sweetener day”.

The post amassed 3.3 million likes before it was taken down. Barbera claims that the photo was posted without permission and that his name was intentionally removed from the photograph to conceal the infringement of the copyright.

Barbera is claiming an account of profits or damages of $25,000 for each photo posted. Grande removed the post and has declined to comment on the proceedings.

How have the other celebrities handled the claims?

Unlike the host of celebrities who have opened their wallets to settle these claims, Gigi Hadid has fought back against the copyright infringement claim.

After settling out of court on the first occasion she was sued, she has now adopted a different stance, which is raising debate amongst the public and intellectual property lawyers alike.

Hadid’s legal team is claiming that the image was fair use and is therefore exempted from copyright infringement. Furthermore, her legal team claim that Hadid had an implied licence to use the photo as she agreed to be photographed.

Hadid’s creative claim is that by her smiling at the camera she authorised the photographer to capture her portrait and as such she obtained an implied licence to use the image.

Interestingly, if this argument was run in Australia and was successful, then the copyright in the photo would be owned by Hadid!

Copyright in the US

Similar to copyright law in Australia, ownership of copyright subsists in the author or co-authors of the work.

Copyright infringement arises where a copyright owner’s exclusive rights to their work are violated, such as reproducing or distributing their work on Instagram without their permission, outside the exceptions available under legislation.

One notable exception to copyright infringement in the US is the legal doctrine of fair use which is determined by the following test:

  1. Purpose and character of the use – what was the person’s intention behind the use?
  2. Nature of the copyrighted work – was it published or unpublished at the time it was infringed?
  3. Amount and sustainability of the work used – how much of the work was copyrighted?
  4. Effect of the use on the market – does it deprive the copyright owner of income or a potential market?

If a person can prove these four factors on the balance of probability, then they will most likely be able to claim fair use of the work in which copyright subsists.

Hadid’s legal team is arguing the fair use test, claiming that the photo was a quick paparazzi image that involved and showcased very little artistic input from the photographer.

An alternative argument also raised is that no copyright subsists in the image as very little skill or labour is applied to the photograph of Hadid and therefore it isn’t an original work. This will be even more difficult to prove.

Paparazzi around the world will be watching the outcome of this case to determine if other jurisdictions will follow suit.

How would this play out in Australia?

Australian law does not have the ‘fair use’ legal doctrine that exists in the US.

The closest equivalent in Australia is fair dealing by which copyright material may only be used if it meets one of the purposes under the Copyright Act 1968 (Cth). These purposes include research and education, reporting news, or for criticism and review.

However, under the Copyright Act 1968 (Cth), where the image is an authorised portrait the copyright that subsists in the portrait is owned by the entity commissioning the portrait.

On this basis, if Hadid were able to convince a court that her smiling at a camera is her way of commissioning the photographer to capture her image, then she would be deemed to be the owner of the copyright subsisting in the image.

For a more iron-clad way to avoid litigation, a celebrity should contact the author of the photograph and obtain permission to use the work on their social media account; or better still purchase the photograph along with the copyright in it from the photographer.

The unauthorised use of images on social media platforms is ever increasing. The only way to avoid potential infringement is to obtain a licence to, or an assignment of, the copyright in an image.

Key Takeaways:

  • Be savvy with social media – if you are not the author of the content that you are posting, find out who is before you post it
  • Produce purposeful posts – ensure that any reposted material satisfies the fair dealing exceptions in Australia
  • Make like the paparazzi – copyright automatically attaches to the author of a work, if you create something make sure you protect your rights in that work so it maintains value