6:00am PT by Ashley Cullins
Paparazzi vs. Stars: Who Owns That Instagram Pic?
Paparazzi long have built lucrative careers on capturing candids of Hollywood stars, but now they're exploring a new source of revenue: suing those same stars for posting their pics on social media without permission.
Khloe Kardashian, Jessica Simpson and Gigi Hadid have each recently been sued for copyright infringement after paparazzi photos of themselves were shared on their official social media accounts. On Feb. 1, NFL star Odell Beckham Jr. sued Splash News for extortion after reportedly receiving a $40,000 demand for sharing an image of himself on Instagram.
Typically, paparazzi pics can easily be licensed for a couple of hundred bucks a pop. But if a star sees a photo online and shares it without permission, the move could lead to six-figure damages if it was willful.
"These lawsuits are ironic and unfair," says Neel Chatterjee, a Silicon Valley-based intellectual property litigator who has handled big-ticket suits for Facebook. "Paparazzi take pictures of them without authorization but then get irritated when the people they took pictures of use the pictures. This is a form of trolling — where paparazzi see a new medium to try to monetize their work."
Dan Taylor, a spokesman for BackGrid, a celebrity photo agency formed in 2016 when Xposure, AKM-GSI and FameFlynet USA merged, says his company outsources its copyright enforcement to a Beverly Hills-based outfit called Okularity, which scans the internet and print publications for clients' photographs. Okularity then determines whether taking action is appropriate or if an unauthorized use qualifies for an exception under copyright laws. Xposure is the company suing Kardashian, and Taylor says unlicensed sharing shouldn't be tolerated.
"It always hurts the licensing market because it's rarely transformative and it's displayed to the same audience and with the same purpose as BackGrid's paying clients," says Taylor. "Unauthorized distribution virtually destroys the licensing value of an image."
Getty Images vp and corporate counsel Lizanne Vaughan agrees licensing content is the bedrock of the industry but says her company avoids litigation whenever possible.
“Without a culture of licensing and enforcing of copyright, photographers lose their ability to sustain their craft,” she says. “How we manage conflicts on copyright is very fact-sensitive; there isn’t a one-size-fits-all approach. Where issues arise, and we can resolve them, short of litigation, that is always our preference.”
While neither celebrity photography nor social media is new, experts say the ability for influencers to now monetize their posts is most likely what's driving the legal clashes. "Social media is actually a business for celebrities," says attorney Jeffrey Greenbaum, who specializes in advertising and intellectual property law. "It's not surprising that photographers are saying, 'If you're going to make money off your social media feed, it's not fair that you're going to take my photograph and not pay for a license to use it.' "
While the suits have been geared toward street photos, awards-season red carpet images could spark the next wave of lawsuits.
Sharing a photo registered with the U.S. Copyright Office could trigger damages of as much as $30,000, even absent a finding that the infringement was willful. But without that registration, a photographer would have to prove that he or she was damaged by the use — and entertainment litigator Jeremiah Reynolds says proving significant damages would be difficult with red carpet pics because of the sheer volume of nearly identical images.
"One could argue there are 20 sets of the same photo floating around, so your damages are zero," says Reynolds. "You'd subpoena the photo agencies and see what they sold for and offer to pay the guy 200 bucks to go away."
Stefanie Keenan, a notable Hollywood events and fashion photographer who shoots for Getty, tells THR she doesn't mind if stars share her images with watermarks that credit her. "I would rather have that happen than see stars using my images without a watermark after not having purchased the image or giving any credit to the photographers — or major publications reposting it from the star's social media, again, without financial compensation," she says. “This happens to me — in one form or another — all day every day, hundreds and hundreds of times a day."
While other photographers may share Keenan's outlook, attorneys still recommend caution.
"This is an area where celebrities and their representatives should be extremely careful," says Greenbaum. "Giving credit might in some circumstances make the photographer less aggravated by the use, but it's unlikely to change the analysis that using someone's photograph without consent most of the time is going to be copyright infringement in this kind of situation."
Natalie Jarvey and Chris Gardner contributed to this report.
A version of this story first appeared in the Feb. 7 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.