No Paparazzi Please!
If you had been keeping up with the Kardashians, you would have known that in 2017 Khloe Kardashian was sued for copyright infringement for posting a paparazzi picture of herself on a social media account without the photographer’s permission. The U.K. based photo agency ‘Xposure Photos’ sought damages of more than $175,000 for the post.[i] Since then a number of well-known celebrities, including Gigi Hadid, Jennifer Lopez and Justin Bieber have had lawsuits filed against them for posting paparazzi images on their social media accounts.[ii] Although Indian courts are unfamiliar with such cases, in this article the author aims to shed some light on the notoriously tense relationship between the Celebrities and the Paparazzi with respect to Copyright disputes had they happened in India.
Are pictures taken by the Paparazzi copyrightable?
Pictures taken by the Paparazzi are protected by the Copyright law. Copyright is an exclusive right given to creators of original work to produce copies or control original literary, musical or artistic works. Section 2(c)(i) of The Copyright Act of India specifically states that an Artistic work includes any work of art including photographs.[iii]
Who owns the Copyright?
As per Section 17(a) of The Copyright Act of India, the first owner of the copyright is the author of the work. Thus, in this scenario, the photographer would be the first owner of the photograph, not the subject of the photograph. As per Section 14(c)(ii), the photographer as the owner of the copyright has the right to exploit his work and to communicate his work to the public. No matter how absurd it may sound, the law is very clear on the fact that celebrities do not own pictures of themselves taken by the Paparazzi and thus can not upload them without a licence.
Do Celebrities have a defence?
- Fair Dealing Defence
Doctrine of fair Dealing, as mentioned in Section 52 of The Copyright Act permits reproduction of a copyrighted work without threat of infringement provided it is for the purpose of private or personal use, criticism or review and reporting of current events. The Bombay High Court in Garware Plastics and Polyester Ltd. v. Telelink and Ors., observed that a private communication is made to a restricted audience of family members and their guests.[iv]Thus social media posts specially on ‘public’ accounts of celebrities can not be considered as ‘private or personal use’.
The defence of Fair Dealing would not work in the favour of the celebrities in India.
- Co-Authorship Defence
In Xclusive-Lee, Inc., v Hadid, Gigi Hadid argued that she was a joint author of the photograph as by posing for the picture she contributed to many of the copyrightable elements of the work (elements of originality in photograph include posing of the subjects.- Rogers v. Koons [v])[vi] As per Section 2(z) of the Indian Copyright Act, “work of joint authorship” refers to work “produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.” It would be interesting to see the court’s view on whether posing would constitute a valid contribution.
In Gigi’s case Xclusive-Lee’s lawyers hit back on that point claiming that with that logic Gigi would be as much a joint author of the copyright of a photograph as the subject of a biography would be in a copyrighted book describing her life.
In the author’s opinion such an argument of joint authorship would fall short although even if it is accepted, in India all joint authors are co-owners of the work and do not have an exclusive rights to use such work without the permission of the other co-authors.[vii] Either way a celebrity would require permission before posting the photograph one social media.
- Right of Publicity Defence
While there is no specific statute for the right of publicity it has been recognised by Indian courts as an enforceable right.[viii] It is a right which protects a person from misappropriation of his name, likeness, or other indicia of personal identity like his photograph for commercial benefit.[ix] This implies that the celebrity can control the commercial exploitation of her photograph and can deny the paparazzi permission to use it even if he is the first owner of that photograph. In Beckham V. Splash News and Picture Agency, LLC et al, Beckham sued the photo agency claiming that the photo agency attempted to extort $40,000 from him for allegedly posting a photograph of himself on his own social media account. According to Beckham the photographer violated his right of publicity by taking pictures of him in his driveway and selling them to the photo agency without Beckham’s knowledge or consent.[x] The parties however settled outside court.
That being said, in the case of Indu Jain v Forbes it was held that the fundamental right to privacy is not absolute and a publisher is free to broadcast, publish or film newsworthy events and persons even if it impinges on the desire of an individual to be let alone. Thus photographers could still licence or sell newsworthy photographs to media outlets.
Since modern problems require modern solutions, Kim Kardashian has hired her own paparazzi and given her fans permission to repost those pictures. It is important to remember that every coin has two sides.While on one side it may seem that the paparazzis are biting the hands that feed them, on the other side of this hefty gold coin there are celebrities like Ariana Grade who are riding on the photographers’ income by using such photographs for commercial purposes like promoting her album and thus deserve to pay damages.[xi] Looking at the big picture, it is advisable to consult an Intellectual Property Lawyer to help determine potential copyright claims by others and to secure appropriate licenses and consents.
[vii]Halsbury’s Laws of England (3rd Edition, Vol, III, para 738), also cited in Nav Sahitya Prakash and Ors. v. Anand Kumar and Ors.