The generally recognized notion is that photographers own the copyright to their works nearly by default. Photographs of celebrities are considered creative expressions under copyright law and that ownership is secured

There is an increasing trend in Copyright litigation in the west in the recent past relating to Copyright where paparazzi have been suing celebrities. The issue is this. The photos that paparazzi takes are often resold to media agencies that, in turn, sell them to celebrity magazines, television shows, and websites. And celebrities often reuse these images and posts them on social media and personal sites Posting these photographs onto social media can mean substantial earnings for the celebrity, especially because most top celebrities today have millions of followers on social media.. The earnings from these social media sites translate into increased publicity for a celebrity’s career and support for their brand building and in some cases when a celebrity have several millions of followers they get paid from the social media site itself. 

"The complaint also states that Lopez never sought permission from Sands to reuse the photos. Sands is seeking information from Lopez regarding how much money she garnered in income or in profits from posting the photo on Instagram. Any profits Lopez may have earned from the photo may impact any remuneration Sands gets in a successful lawsuit"

In 2017 reality show celebrity Khloe Kardashian posted a paparazzo generated photo of herself onto her Instagram account. Xposure Photos, based in the United Kingdom, owned the copyright to the photo and sued Kardashian for $175,000. The company accused Kardashian of not asking for permission to reuse the photo. Kardashian deleted the images and the lawsuit was then dismissed. Among the other top celebrities who were subject to litigation recently are Jennifer Lopze, Kim Kardashian, Jessica Simpson and the most recent Dua Lippa

Sands v. Lopez et al  1:2020cv03126 

Jennifer Lopez was sued as defendant for the second time in a copyright infringement lawsuit. The second and current lawsuit is from Lopez’s action in 2017 when she uploaded a photo to her Instagram page dressed as her NBC Shades of Blue television character “Harley.”That photo was taken by New York-based photographer Steve Sands. She shared the photo with her 118 million Instagram followers. Sands is suing for $115,000 in damages in federal court under the US Copyright Act. Sands alleges that Lopez violated his right to control the reproduction and public display of the photos. He registered the copyright after he took the photos. The legal complaint uses strong, accusatory language, stating the copyright violation was “willful, intentional, and purposeful.”Sands’ alleges that Lopez used the photo for her own promotion and received more than 650,000 likes from her 118 million Instagram followers. The complaint also states that Lopez never sought permission from Sands to reuse the photos. Sands is seeking information from Lopez regarding how much money she garnered in income or in profits from posting the photo on Instagram. Any profits Lopez may have earned from the photo may impact any remuneration Sands gets in a successful lawsuit. As the plaintiff, Sands believes his photo had value and Lopez’s actions diminished the potential income he could have earned from it. The lawsuit against Jennifer Lopez is a textbook case that shows the trend in the past couple of years of photographers, especially paparazzi, suing celebrities for copyright infringement. If Sands is successful against Lopez, then as odd as it may seem to celebrities, they would not have an automatic right to re-use images of themselves taken by photographers in 
public venues.

Bolden v. Skims Body, Inc. et. al. 2:2020cv00365

Kim Kardashian was sued in US District Court Eastern District of New York by paparazzo Saeed Bolden for a 2018 repost of a photograph to her Instagram account. The parties settled their lawsuit in 2020. Similar to Sands, Bolden sued under the Copyright Act. Initially, Bolden sought profits Kardashian may have earned from the social media post as well as seeking punitive damages. Many of Kardashian’s 174 million Instagram followers viewed the photo. Additionally, Bolden claimed Kardashian’s shape wear company Skims Body’s Instagram account is linked to her personal account. That account is followed by 1.7 million people. He alleged the photo was seen by a combined 2.2 million of Kardashian’s personal Instagram fans and people who follow her business’s Instagram page. Since the image was registered with the US Copyright Office, when the infringement was alleged to have taken place.

Integral Images, Inc. v. Dua Lipa 2:2021cv05470

British superstar singer Dua Lipa, was recently was sued by Integral Images for posting on Instagram a photo of herself that was taken by a photographer working for the said company. The allegation was that she was photographed when queuing at an airport by a photographer and she has shared the same photo with her fans four days later, on her official Instagram handle. Integral Images (“the company”), The company filed a copyright infringement complaint in the US District Court in California and based their claim that since she profited from using the photograph, as her Instagram account is monetized and is a marketing tool for her music and therefore sought damages and an order preventing the singer from further acts of infringement. 

In all these cases the crux of the grievance here is the celebrity using a photo where the subject is him or her, but the photo is owned by another and by posting it on his or her own site or social media page and monetizing from it, the actual owners’ copyright is infringed. There are basic and three fundamental questions arise in the mind of everyone who reads these cases i.e. who has the copyright to the photo? And who has the right to the subject in the photo? And whose right it is to publicize that photo?

The Copyright Law

The generally recognized notion is that photographers own the copyright to their works nearly by default. Photographs of celebrities are considered creative expressions under copyright law and that ownership is secured. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a function, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. As long as the photographs exist in a tangible medium, copyright law is essentially on the side of the photographer.

" In all these cases the crux of the grievance here is the celebrity using a photo where the subject is him or her, but the photo is owned by another and by posting it on his or her own site or social media page and monetizing from it, the actual owners’ copyright is infringed. There are basic and three fundamental questions arise in the mind of every who reads these cases i.e. who has the copyright to the photo?"

In some countries like in India and US there are also two other traditional routes to formally secure copyright. The first is to register the creative expression through the copyright office and the other traditional and free way is to add ‘© ‘symbol and add the name and year to the creative expression. However one needs to very clearly bear in mind the registration of the Copyright is only a date stamp and does not prove authenticity. 

 
The 1976 Copyright Act of US mandated that creative works be “fixed in any tangible medium of expression.” Photographs are included as “pictorial” works. Any photographer who secures copyright controls those ownership rights for his/her life plus an additional 70 years. The photographers have every legal right to secure their celebrity photos and control how they are viewed by the public. This includes securing the right to reproduction and display.
The Indian Copyright Act, 1957 (“the Act”) clearly states that the photographer owns all the rights to the photographs and that no person, including the subjects of the photographs, have rights to publish the photographs without obtaining prior authorizations from the photographers.

The Sri Lankan Copyright law found in Part 11 of the Intellectual Property Act No. 36 of 2003 stipulates the law in similar vein to US and India. The protection of copyright is afforded to life plus 70 years. The Sri Lankan law also primarily echoes the author supremacy principle of Copyright law. Everything boils down to author. The law stipulates “author” as the physical person who created the work. “work” means any literary, artistic or scientific work and expressly denotes inter alia “photographic work” Therefore the owner of the photograph becomes the copyright holder of the photograph unless the author of the photograph was employed or commissioned by an employer, the original owners rights shall, unless provided otherwise by way of a contract, be the employer
The author’s right extends to the right to reproduction, distribution, rental, display, broadcasting or other communication to the public. Furthermore the author to have the right for his name or pseudonym to be indicated prominently on the copies in connection with any public use of this work and also to object to any distortion mutilation or other modification of or other derogatory action in relation or his work which would be prejudicial to his honor or reputation.  

Given this position it is clear in law that the person who took the photograph for himself or for his employer controls every right to the photograph and consequently reuse of the photograph needs authority or a license for the owner.

Precedents in Photography and Copyright Law 

In a landmark case regarding whether photography can be copyrighted, the Supreme Court in 1884 in Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 (1884) , the Supreme Court heard an appeal by a photographer who accused someone of infringing on his work. Photographer Napoleon Sarony created a series of photographs of Irish poet Oscar Wilde in New York City in 1882. 24 He published and one of them as“Oscar Wilde No. 18” and secured the copyright. 25 Burrow-Giles Lithograph Company reused Sarony’s image without permission and infringed on his copyright. The lithograph company contended that photography was not part of the creative works eligible for copyright. The Supreme Court disagreed. The Court held photography was an art form in its own right equal to the engravings, music, and prints which Congress added to the list of copyrightable creation. Justice Miller wrote:“Unless, therefore, photographs can be distinguished in the classification on this point from the maps, charts, designs, engravings, etchings, cuts, and other prints, it is difficult to see why Congress cannot make them the subject of copyright as well as the others. Burrows-Giles was not able to make the argument that photographs were less deserving of copyrights compared with engravings, etchings and other artistic works. As a photographer Sarony was just as creative in his profession as an artist with the same attention to detail in setting up his Oscar Wilde photography session. In acknowledging that photography had a creative element, the Court supported Sarony’s copyright: “We entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.”

"In all these lawsuits, another defense the celebrities bring about is since they were the subject of each photograph; they have the right to control their image, the right of publicity. This concept of right to publicity is thus: a celebrity’s right to have his or her image, name or any other likeness protected and can only be used exclusively for commercial purposes with permission"

The landmark Burrow-Giles decision provides a platform to protect of original authors to today’s creative landscape where digital photography is often posted onto online social media in violation of original authors. 
However in the US, owing to the existence of Copyright registration regime the Court in a recent case Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. (2019) has held that copyright owners must have their creative works registered in United States Copyright Office before filing legal action against anyone. Hence in order for any photographer to sue for copyright infringement, the photos in question must be registered. This registration is separate from declaring the copyright ownership. Registration does not prove authenticity. The Court clarified that registration is needed as the legal proof of copyright provided by the government. However, this will not be the case in Sri Lanka and many other jurisdictions where there is no Copyright registration regime. 

The main issue springs up in the present day because of the way Social media complicates and in an instant violates someone’s Copyright. It has impacted the digital photography industry in many ways. People are “affected by copyright than at any previous time in history. That included liability for online content infringement” says former U.S. Copyright Office Maria Pallante, wrote in the Columbia Journal of Law and the Arts. She has urged the law to be amended to include consider how to enforce “incidental “digital copies of original works’ as well as encouraged to consider the idea of an “opt-out system” for creators to disseminate their works. That is“ Authors and other artists would secure copyright but also allow their works to be used by a group of people with prior approval of the artist” “It has the potential to provide certainty for users and remuneration for copyright owners (for example, in mass digitization activities) but would provide some control to copyright owners wanting to opt out of the arrangement” 

Publicity Rights v. Copyright

The right of publicity or personality rights are the rights of a person to prevent others from using their image, name, likeness, experiences and other aspects to control the commercial use of their identity without their consent. Although there is no statutory provision to protect ones right of publicity in Sri Lanka, the rights have been recognized by Indian Courts on several occasions. Indian Courts upon deciding whether the purpose of social media posts and if the same is considered ‘public’ or ‘private’, in Garware Plastics and Polyester Ltd. vs. Telelink and Ors.[AIR 1989 Bom 331], held while deciding upon whether the alleged infringing communication was private or public, had applied the test of character of the audience and observed that a private communication is made to a restricted audience of the members of a family and their guests. Therefore, social media posts, particularly on ‘public’ accounts which celebrities usually have, cannot be considered as ‘private or personal use’

Fair Use Exception

Nevertheless, in almost all cases of celebrity reusing photograph of themselves taken by someone else, one major defense that have been put forward is the Fair Use defence. This legal doctrine provides an exception to copyright infringement where even if the use of a work is not for the purposes of personal use, criticism, etc. it could amount to ‘fair use’. This is usually examined based on four factors, namely-the purpose and character of the use; nature of the copyrighted, work; amount of the portion used; and the effect on the copyright owner’s potential market. This fair use exception is recognized in Sri Lanka under sections 11 and 12 of the Intellectual Property Act. 

In all three referred law suites of Lopez, Kardashian and Dua Lippa lawsuits, if the four-part test can be applied. All celebrities used the photos for the purpose of promoting themselves on social media to their millions of followers, In all cases the nature of the copyrighted work was a photograph. The third element, the amount or portion used, was the entire image. Finally, and perhaps most important element, the effect on a photographer’s economic value. This is where the judge will have to determine. The plaintiffs will have to prove a loss of income from the alleged infringement which he could have otherwise earned if the plaintiff can prove that they lost a substantial amount of money from infringement, they may win their cases. This fourth part of the fair use test may be the key to determining if infringement occurred. It has to be noted simply because they were the subject of the photos; Lopez, Kardashian and Dua Lippa do not have rights to them. Furthermore an important factor in this regards to keep in mind is that the photographs were taken in a public places where celebrities in many countries there are few or privacy rights as in many countries an exception to law of privacy is created in public places. On the other hand, in certain places for example in California, as per California Civil Code and Invasion of Privacy Law and anti-harassment law. it is illegal for anyone to intrude on a celebrity’s family’s privacy or to stalk them in order to get photos. 

Reverse Right of Publicity

In all these lawsuits, another defense the celebrities bring about is since they were the subject of each photograph; they have the right to control their image, the right of publicity. This concept of right to publicity is thus: a celebrity’s right to have his or her image, name or any other likeness protected and can only be used exclusively for commercial purposes with permission. However, in these cases, the celebrities gave themselves permission to use their images when they appeared in the public places where as explained above no right to privacy exists. And conversely the Right of publicity applies when a media product such as a magazine or newspaper has a photo of an athlete, musician, or actor from a previously published article and then reuses it to promote their product to customers. In such circumstances, celebrities may sue if their permission was not obtained for the photograph.

"In all three referred law suites of Lopez, Kardashian and Lippa, if the four-part test can be applied. All celebrities used the photos for the purpose of promoting themselves on social media to their millions of followers"

On the other hand Media institutions often use a Freedom of Expression defence and argue that the celebrity image itself is not an outright endorsement of their product but instead, it is related and is a part of quality journalism. There is of course though only a thin line that divides endorsement by the celebrity and the celebrity’s image. In many countries, when a celebrity’s image is used in a profile article, the media organization asks celebrities too sign consent for future permission to use the image in promoting the media products. 

Finally, all in all, you don’t have a right to a photograph taken by someone else simply because you were the subject of the photograph, if it was taken in a place where you were not protected under privacy law. If you would like to use such photograph for anything which does not fall within the fair use exception to Copyright, you have to obtain permission from the copyrights holder. In the case of photograph as it is clearly established in law the Copyrights holder is the photographer or his employer.