The irony never ceases to amaze me when musicians and their record labels blatantly disregard the copyrights of photographers. They are the first to charge into battle with the hounds of hell for any unauthorized use of their music. And yet, they don’t think twice about stealing other artist’s intellectual property for their own gain. Ariana Grande, who is no stranger to the crosshairs of the photography community, is being sued in New York by “photographer” Robert Barbera for posting two photos to her Instagram account without purchasing a license to use them.
I use the term “photographer” in quotations as a mild protest against the idea that paparazzi should be considered legitimate photographers, because well, there’s a special place in Hell for them. I want that to be clear up front before I defend their rights as “content creators.”
I hate to admit it, but they’re entitled to the same protections of intellectual property under the law that we all are, and it’s a good thing for the entire creative community when infringers are held accountable.
What I really want to get at, however, is the overwhelming perception from the public that because the pictures are of Ms. Grande, that she “owns” them and should have the right to use them at will. She doesn’t. And it really doesn’t matter how you feel about it. The law doesn’t work that way. It’s pretty clear cut. And yet, if you read the headlines and scour the comments of the pages reporting it, you’ll find a deluge of ignorant opinions bashing the lawsuit and the very idea of ownership on Mr. Barbera’s part.
These quotes are taken verbatim from the comments sections of various news outlets. And they are all just plain wrong and uninformed.
“Why should she have to pay to use photos of herself?”
“The photo was taken without her consent violating her privacy, why should the photographer get a pay day?”
“I think the photographer is a bit of a knob for this actually. They hound celebrities taking unwanted photos at all hours of the day and night in an intrusive manner, without permission. Surely the subject at least has the right to use that photo! Urgh.”
“I thought it was a legit contracted photographer but turned out the "photographer" is a paparazzi? wtf, how could he have any right of a stolen image?”
Even these so called “journalistic” entities reporting on the story throw shade at the legitimacy of the concept when they feature headlines such as “Ariana Grande sued for using photos of herself.”
I swear, whatever dignity remains in the media is floating away like a fart in the wind. Ariana Grande is being sued for copyright infringement, not because she’s posting selfies on Instagram.
Whether it's the plans for a new Tesla, the manuscript for the next Game of Thrones Book, or a snapshot of Britney’s fun zone as she gets out of a limo, they are all protected by US copyright law and unlawful use is, by legal definition, an infringement of that copyright and constitutes theft.
And I get it. Believe me I do. The idea that someone can snap a photo of you, do as they please with it, and somehow “own your likeness” is a little alarming. But I promise you, that is not what is happening here. There is nothing illegal about what Mr. Barbera did.
I wrote an article a few months back detailing the importance of licensing and why it matters. That was written for photographers. I wanted them to understand their rights because far too many of us are the doormats of the art world. What I wrote then bears repeating: With specifically rare exceptions, the owner of a photograph is the person who created it. Period. Whether you’re a professional photographer who a mommy blogger who uses her smartphone to snap shots of her kids, those photos are exclusively yours. The second they are taken, they inherit the protection of US copyright law. So let’s get over this misconception that you own the photos that someone takes of you. You don’t.
This post is intended to speak to the average person in America, who might not be familiar with copyright law. I want you, dear reader, to understand that you do have the right to your likeness, but that the concept of “privacy” really has a limited application from a legal standpoint, and most of what the average person thinks is protected under that blanket really isn’t.
Also know that the precedent for photos being sold to tabloids isn’t motivated by some conspiracy to protect the slimy, opportunistic paparazzi who harass celebrities, but rather it is rooted in the very noble pursuit of protecting journalists, who do very important work to keep the public informed about the vital issues of our day while exposing the corruption and evil in our world. And whether you like it or not, TMZ , is considered journalism (and to their credit, they have an impressive record of accuracy). The law has determined multiple times that celebrities are “public figures” and the “public’s right to know” is more important than the inconvenience of celebrity.
Privacy doesn’t really exist. Get over it. Of course that’s not entirely true. You are entitled to privacy under certain conditions. For example, you can’t illegally wiretap someone’s phone, set up a camera in their bedroom, or access someone’s medical records. The conversations you have with your lawyer and your doctor are also protected by law. Hell in some states (like Florida) it is illegal to record a conversation with someone without their consent. But as a general rule, If you don’t want anything you’re doing or saying to be up for grabs to the public, don’t do it in public. And by “public” I mean anywhere you would not have a “reasonable” expectation of privacy.
So what is considered “reasonably” private? Basically it’s limited to inside your house/ hotel room, a bathroom etc. And even then it’s not so cut and dry. The point is if you’re out in public, anyone can legally take a photo of you for any reason. The law is very clear on this. If I can see it, I can legally shoot it. Hell, even if you are inside your house or in your backyard, If I can see what you’re doing from where I am standing (assuming I am not trespassing), guess what? It’s not private. So if you want to sunbathe naked, make sure your fence is high enough. And if you like to get freaky with the windows open, you’re out of luck if the neighbor from the building across the street is a Peeping Tom with a 70-200mm lens.
But the question remains. What can be done with the photos?
Thankfully, we have a great example to learn from thanks to Ms. Grande’s blunder.
Any commercial use of a photograph featuring a clearly recognizable person requires a model release that grants consent from the party to be used in the advertisement. If i take your photo, I can put it on my website, on my blog, on my instagram account, I can even print it and hang it on my wall. And I don’t need your permission for it. However, I cannot sell it to third parties to use in advertisements or sell it as a stock image. Nor can I put your face on a T-shirt and open an Etsy shop without your consent.
And also keep in mind individual entities do have the legal right to control what kinds of images can be posted on their platforms, so if the photos you take violate the terms and conditions of that platform, they’re well within their rights to prohibit them.
But, if the usage falls under The Fair Use Doctrine, your options for protection are rather limited.
The first paragraph of the Wikipedia article for fair use sums it up pretty simply:
Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement.
What this pretty much means is that if a picture of you is used within a context that provides some sort of news value or social commentary, the courts have ruled that the use is legal. And no it doesn’t matter if the magazine or website is hosting advertisements (as long as your image isn’t featured in the advertisement of course). Even “for profit” news sites like TMZ, are entitled to protection. This isn’t just limited to journalism either. Uses that fall under the umbrella of parody or satire are also protected. So if you’re a “Florida Man” waiting to happen, don’t get upset when the internet makes a meme out of you.
Most of us will live and die in obscurity. It is unlikely we’ll ever be special enough to warrant our photo being published in a newspaper, unless you commit a crime or do something heroic like save a bunch of puppies from a burning building. But even something more ambiguous can grant a publication the right to publish your photo.
Let’s say for example you willingly participate in a political survey outside of your local library and your photo is taken. If the results of that survey are turned into an article or a broadcast on the local news, then those entities are legally protected in using your image since it’s within an acceptable context of “newsworthiness.”
And while It is not always easy to determine what will qualify as “legit” commentary or as “newsworthy”, the courts traditionally have taken an extremely broad view of "news" and "commentary." It can be applied to any reporting or commenting on current events or social issues including "soft news" like celebrity gossip.
And in case you didn’t already know, public figures such as athletes, actors, politicians, authors, prominent businessmen, and yes, even Youtubers and Instagram models, have even fewer privacy protections than you and I. That’s why it is damn near impossible for them to successfully sue for slander or libel. As you can imagine, Ariana Grande neatly fits into that definition.
So, given everything I’ve just discussed, the “photographer” who took those photos of Ariana Grande was well within his rights to take them because she was out in public and he was not trespassing when he took them. US copyright law indisputably grants him ownership of those pictures. And he is well within his rights to sell them to news outlets because Ms. Grande is a public figure, and as asinine as it sounds, the dumb shit she does qualifies as being “newsworthy” and within the public’s “right to know.”
However, he cannot take those photos and sell them to Burberry to use in a perfume ad. He can’t sell them on a stock website, or create his own website and pose as Ariana Grande.
With all that being covered, we can now come full circle and focus on why the photographer has grounds to sue Ms. Grande.
For most people, social media is just a fun distraction. But it’s important to understand that these platforms have evolved into massive, marketing juggernauts that provide brands, and businesses access to millions of potential customers, viewers, subscribers etc. Online advertisements now yield a much higher ROI than traditional mediums like television or radio. This is especially the case on social media platforms like Instagram because unlike television commercials or print ads, you can communicate and interact directly with your target audience. Furthermore, the tools on these platforms are downright surgical with their abilities to narrow down your audience even further and create advertisements specifically for individual variables.
Ms. Grande isn’t just some wannabe “influencer” posting bathroom selfies hoping to score a free hotel stay in the Maldives. She is a business and her face is a massive part of her brand. Her net worth is estimated at around 50 million dollars. She has over 150 million followers on Instagram alone. Unless she sets up a separate profile and keeps it private, anything she posts is going to be considered a promotion for her brand.
Furthermore, the photos in question featured her carrying a bag with the word “Sweetener” on it, which is the title of her fourth studio album. It doesn’t take a detective to see that her instagram post was an advertisement for her business ventures and it was likely seen by millions of people in the short time that it was posted. That’s the kind of attention brands write big checks for. And she posted it using content she doesn’t own and failed to properly license. The photographer can rightfully argue that by using the photos without proper authorization, Ms. Grande not only directly prevented him from profiting from his own work, but in doing so, also diluted the value of the photos going forward.
What she did was no different than if Honda snagged one of her songs and used it on their next commercial without paying for the rights to do so. What do you think her representatives would do in the event of such an unlikely scenario? The music industry is relentless in protecting the profitability of its intellectual property.
As outrageous as this whole situation is, if you’re in the business of creating content for a living, you should be relieved. You don’t have to be morally on board with the concept of tabloid journalism, and it sure as hell doesn’t have to change your opinion on paparazzi, but in order for copyright protection to exist for all of us, there has to be a line drawn in the sand somewhere so that the creators of legitimate works of art, science, technology, and medical advancements are rightfully protected.
That protection is critical in incentivizing these individuals to share their creations with the world. That protection is also like a muscle. If it isn’t used (enforced), it atrophies. It’s the reason why Walt Disney will sue a daycare for painting murals of their characters on the wall. If cases of infringement aren’t avenged, then offenders can argue that the work in question is fair use.
So while we might all hate paparazzi, in this case, a win for the scum of the Earth is a win for us all.