Celebrities with millions of social media followers are often the target of a specific brand of copyright lawsuit: accusations of infringement over posting photos of themselves.
Social media has created an explosion in copyright infringement, attorneys say, and recent technology has enabled photographers to more quickly and easily find infringing posts and be proactive against high-profile people who share protected works.
Litigation against celebrities like LeBron James and Bella Hadid for posting photos of themselves on social media highlights the ongoing strife between photographers trying to protect their work — and make a living off it — and what one reality TV celebrity has called a “weaponization” of the Copyright Act.
“There’s no question that social media has increased the amount of infringement that is out in the world,” said Nate Kleinman, an attorney who represented photographers in suits against NFL quarterback DeShaun Watson and James. “It’s never been easier to copy and share and post images.”
Finding those infringing works has also become progressively easier. “In the last two or three years, image search technology has gotten a ton better” and become an “amazing and fast” technology, said Perkins Coie partner William Rava.
Many of the lawsuits against celebrities are brought by a small group of firms that have been labeled by some as “copyright trolls” because of their prolific litigation. Some celebrities have fought back against the suits to varying degrees, but most settle before litigation progresses, Knobbe Martens partner Mauricio Uribe said.
Because most common defenses are gone, celebrities have said, “There’s just a fundamental unfairness here,” Uribe said. “‘As a celebrity, I’ve got someone else who, because I was in a public setting, can take my image. But I’m the one that’s ultimately going to be found liable and pay damages for basically reposting an image of myself.”
The details of those settlements are generally kept private once the litigation is closed. But sometimes plaintiffs will seek more than “just whatever royalty would be posted,” said Howard Shire, a Troutman Pepper Hamilton Sanders LLP partner.
If the social media page is used to advertise and promote products, the photographer may seek “some sort of share or all of the proceeds that somebody is being paid to endorse or advertise the product on which the infringing photo appeared,” Shire said.
Celebrities’ gripes about facing lawsuits over posting images of themselves haven’t been fully adjudicated as legal arguments. Judges haven’t considered or ruled on these cases because it’s often more financially practical to settle them, Uribe said.
“Unless you really have someone who wants to spend a million bucks in legal fees and say we’re going to push this issue, most of them say, ‘Yeah, let’s figure out what they can do,'” Uribe said. Even the unclean hands defense some celebrities have asserted — saying the photographers are profiting off their likenesses — may be unsuccessful because it’s not represented in the copyright statues and there’s not a lot of case law relating to it, he added.
Celebrity defendants could get new tools against such lawsuits from generative artificial intelligence. A recent notice of inquiry issue by the Copyright Office floated the idea of a federal right to publicity, which generally prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects, and could bolster celebrities’ opposition.
Athletes Watson and James, models Hadid and Emily Ratajkowski, musicians Dua Lipa and Miley Cyrus, and reality television star Lisa Rinna have all faced lawsuits stemming from photos of themselves they posted on social media — all but James’ posted on Instagram, the social media service owned by
Other celebrities have faced copyright suits for varying reasons. Paris Hilton recently settled a suit over her use of licensed photos of herself for a marketing campaign allegedly outside of the photographer’s permitted scope. And Chrissy Teigen was sued last month for posting a photo of Katie Holmes. But attorneys say the cases of celebrities posting themselves are viewed differently.
Hadid’s case is still pending, but the others have settled. “It’s not worth the legal expense to fight these issues” compared to “what these individual photographers or these studios are charging,” Uribe said.
“It’s a volume play,” for some plaintiff-side firms, Rava added. They “sign up photographers, get massive portfolios, and send out hundreds of demand letters that result in the filing of dozens of lawsuits.”
One law firm even published a blog post about how to respond to copyright demand letters from Sanders Law Group, the firm behind lawsuits against Hadid, Lipa, Cyrus, and Ratajkowski. The firm did not respond to Bloomberg Law’s requests for comment.
There are plenty of reasons celebrities are ripe targets for such lawsuits, attorneys say. Influencers might have insurance protection against legal action, but often those plans have exceptions against covering a copyright infringement claim if its an intentional use, said the photographers’ attorney Kleinman, at McCulloch Kleinman Law, adding that suing a celebrity can bring more awareness to copyright issues.
There’s also a better chance of recouping the ill-gotten gains from celebrities. When there’s a celebrity with a substantial amount of followers on social media, Uribe said economists and theorists will estimate the value of the social media impressions, and tell photographers, “that’s the value they got by reposting your picture.”
“It’s always more worthwhile when you have an infringer that has deeper pockets,” Kleinman said.
Even if they settle, Uribe said some defendants have alleged there is a “fundamental unfairness,” in these lawsuits.
Rinna, a reality television star, asserted an affirmative defense of unclean hands and misuse of copyright in a suit from a celebrity photo agency over multiple photos she had posted on her Instagram. She said the plaintiff “weaponized” the Copyright Act and allegedly paid third-party vendors to “peruse celebrity social media accounts to identify attractive targets.”
Plaintiff-side attorneys in these cases are often dubbed at “copyright trolls,” Kleinman said. But he said he didn’t think that label was fair.
“It’s a cop-out to say that any plaintiffs firm or lawyers that are handling copyright claims, for uses on social media, are ambulance chasers or are acting in bad faith,” he said. “There are photographers and people that, you know, this is how they make their living.”
He added that oftentimes, the photographers just want credit for their work.
“They’re not necessarily interested in filing a lawsuit,” Kleinman said. “It’s more of a personal issue for them that they feel slighted.”
These cases represent the intersection between copyright law and right of publicity, Uribe said. Right to publicity statutes have been established in some states and generally prevent the unauthorized commercial use of an individual’s name, likeness, or other aspects.
Kleinman said he doesn’t think celebrities’ right to publicity claims would stand in these cases, since copyright owners are well within their right to license photos to news organizations or put it on their website as a portfolio use. “If they’re putting it on a billboard or selling T shirts with their face on it, that’s more of a right to publicity issue,” he said.
There is no federal right to publicity, though at least 35 states have adopted them, according to a recent Congressional Research Service report. The report notes that the Copyright Act supersedes state laws like the right to publicity, but acknowledged courts have inconsistently applied the law. “Congress could clarify the scope of copyright preemption of ROP claims by amending” part of the act, it added.
Senators at a July 12 hearing on AI discussed establishing a federal right of publicity due to generative AI’s ability create realistic images and videos of real people, and mimic characteristics like voice.
In the meantime, Uribe said, some celebrities have hired their own photographers to take the types of photos they’ve been sued for infringing as a way of beating the photographers at their own game.
“Once you’re burned once you don’t want to be burned again,” Shire said.
