Another celebrity is being sued for republishing a paparazzi’s photograph. RAMALES v. BECKHAM

Another celebrity is being sued for republishing a paparazzi’s photograph. RAMALES v. BECKHAM

A creator is granted a copyright to their new work of expression when the work is fixed in a tangible medium.  This means that when a photographer takes a picture, the photographer is automatically granted a copyright in the work.  In the United States a copyright can be registered to gain additional rights, but registration is not a prerequisite to the creation of the copyright.  A copyright grants its owner the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original.  If someone exercises one of these exclusive rights, without authorization from the copyright owner, that can be considered copyright infringement.  A plaintiff that successfully demonstrates that copyright infringement can be awarded statutory damages of $150,000 per infringement.

Society has evolved dramatically since the concept of copyright first emerged.  The Congress of the United States enacted the first federal copyright law in May 1790, and the first work was registered within two weeks.  In 1976, the fourth revision of the copyright law signed by President Gerald Ford.  In 1998, the Digital Millennium Copyright Act provided for the implementation of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.  Despite these revisions, copyright law struggles to keep up with the advance of technology.

The internet presents copyright law with unique challenges.  Copyright law originated when works could only be reproduced by manual or mechanical means. Reproducing a copyrighted work took a significant amount of time and effort.  There was an opportunity for contemplation of the consequences of reproducing a work.  Computers and the internet make it trivial to reproduce and distribute a copyrighted work to the entire planet in a matter of seconds.  It is so easy to reproduce a copyrighted work today many people don’t pause to think about the consequences of sharing an image on social media.

Celebrity status is another aspect of society that has evolved dramatically in the past few decades.  Since ancient times story tellers have made a living entertaining audiences with stories about notable people.  With the advent of photography and movies, the public became interested in getting images of their favor celebrity.  In recent decades, candid celebrity photography has evolved and matured into an industry of its own.  Paparazzi earn money in this industry by following celebrities around, snapping pictures and selling those pictures to whomever will pay.  While celebrities earn their living through their notoriety, Paparazzi are seen as a nuisance.  Paparazzi make their living by photographing celebrities and the subjects of the photographs get no compensation.  Copyright law does not provide any rights to the subjects of a photograph only the photographer.  This can lead to considerable consternation on the part of the celebrity who feels that they should have some right to photographs in which the celebrity appears.

FELIPE RAMALES v. VICTORIA BECKHAM INC., 19-cv-08650 (S.D.NY 2019) is a case which involves a celebrity reproduced a photograph of themselves and was sued by the Paparazzi that owns the copyright to the picture.  The plaintiff in this case is a professional photographer that takes photographs of celebrities and licenses those photographs for a fee.  The defendant is Victoria Beckham, singer, fashion designer and wife of football player David Beckham.  The defendant was walking in public in May 2019 wearing an outfit of her own design.  She was photographed by the plaintiff without her consent.  The defendant then found the image somehow and uploaded it to her social media account with the text “swipe up to shop the look”, meaning that the viewer of the image could follow a link to purchase the outfit.  The defendant essentially used the photograph to advertise her outfit.

The plaintiff registered the photograph with United States Copyright Office and was given registration number VA 2-162-149.  The plaintiff then commenced a lawsuit against the defendant for copyright infringement. In the complaint the plaintiff requests the statutory maximum damages of $150,000 per infringement plus attorney’s fees, which could total millions of dollars if each view on social media is considered an infringement.  In the abstract, this is an open and shut case, despite the defendant being the subject of the photograph she does not have a claim to the copyright of the photograph. A defense of fair use doesn’t apply here because fair use does not take into account the subject of a copyrighted work.  However, method to calculate damages are not set in stone.  The defendant’s best course of action will be to argue that attorney’s fees should not be awarded and that damages should be set closer to the minimum value of $750, and that the infringement was the single act of posting the picture not the number of views.

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