Is it copyright infringement to post a picture of yourself, taken by someone else?

A copyright is a set of exclusive rights granted to the creator of a new work of artistic expression. A creator is granted a copyright to their work when the work is fixed in a tangible medium. This means that when a singer records a song, an artist paints a picture or a photographer takes a picture, they are automatically granted a copyright to their work. In the United States an artist can register the copyright in the work with the United States Copyright Office, registration grants the copyright several rights and is required for the artist to file a copyright infringement lawsuit. However, copyright registration is not necessary for the artist to be granted a copyright to their work.

A copyright grants the artist the exclusive right to reproduce, distribute, display, perform, transmit and prepare derivative works based on the original. If someone other than the copyright owner exercises one of these exclusive rights that person can be held liable for copyright infringement. A copyright owner can sue an infringer for monetary damages related to the copyright infringement.

A defendant in a copyright infringement lawsuit has a few defenses available, one of those defenses is that the defendant’s use of the copyrighted work was a fair use. Fair use means that the defendant’s infringement of the plaintiffs copyright is excused because the defendant’s use served a greater social purpose. Four factors are considered by a court when a defendant please a fair use defense, those factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market. There is no bright line rule on how a court must weight each of these factors, and how each of the circuit courts have interpreted these factors varies slightly.

The internet presents Copyright law with unique challenges. Copyright law was written when it took a substantial amount of effort to reproduce and distribute a copyrighted work, like a photograph. Copyright law presupposes that a copyright owner is harmed in a way that is difficult to quantify, every time that copyright infringement occurs, and allows a copyright owner to be granted statutory damages without proving actual damages. The internet makes it trivial to reproduce and distribute a photograph almost instantaneously.

The internet has also fostered a cottage industry of paparazzi who follow and photograph celebrities. The paparazzi’s sole source of income is licensing photographs, often taken without permission, of celebrities. The only reason the photographs have a value is the celebrity in the photograph. The photographer typically has little to no artistic input into the photograph because the photograph is taken in haste while following the celebrity. Many celebrities feel that they have a right to use paparazzi photographs of them, because the celebrity is the reason the photograph has value. The question then becomes, if a celebrity reproduces a paparazzi photograph of themselves, can the celebrity claim they are protected by fair use?

A case which deals with this question is XCLUSIVE-LEE, INC., v. JELENA NOURA “GIGI” HADID, 19-cv-00520 (S.D.N.Y. 2019). The plaintiff in this case is a company that licences photographs taken by paparazzi of celebrities. On October 11, 2018 a photographer employed by the plaintiff took a picture of the defendant, an international model named Gigi Haddid. The defendant found and posted the picture taken by the plaintiff on a social media account she controls on October 12, 2018. How the defendant acquired a copy of the photograph is not detailed in the complain, but it can be assumed that she found it on a website that licenses photos for republication. On October 19, 2018 the plaintiff registered the copyright on the photograph. The plaintiff then sued for copyright infringement in January of 2019.

As of April 2019, the defendant has not responded to the complaint, but court filings indicate that the defendant has told the plaintiff they will claim that the defendant’s use of the plaintiff’s photograph is a fair use. The plaintiff sent a letter to the judge explaining all the reasons why fair use does not excuse the defendant’s behavior. The primary issue raised by the plaintiff is that the defendant’s use was an unedited reproduction of the photograph made on a social media account that the defendant uses for commercial purposes. Fair use is rarely found when a use is not transformative and has commercial purposes.

It will be up to the judge to decide whether the defendant makes a persuasive argument for fair use. This case will either reaffirm that a copyright owner has the exclusive right to reproduce copyrighted works, or it could create a whole new category of fair use.

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