It’s safe to say that most celebrities are not camera shy, and that seems to be the case with the photos they post on social media as well.
In the past few months, many notable athletes, actresses, and other professionals in the public eye have been sued for posting a photographer’s work on their social media accounts without consent or permission—names like LeBron James, Amy Schumer, and Jennifer Lopez to name a few.
Yet the photos these stars were posting online were actually pictures of themselves: Schumer is being sued for posting copyrighted photos of herself and her son on her Instagram account to allegedly push her clothing line, and Lopez and her production company were sued for posting a paparazzi photo of herself to promote their brand.
Professional photographers argue that they make a living licensing their images to media companies and outlets for a fee, and that they suffer a loss of revenue when celebrities use those photos on their social media accounts, since that may provide less incentive for companies to purchase their photos or for readers to view them.
When Is Promotion a Copyright Violation?
Is a move like this just a shrewd demonstration of savvy self-promotion via social media or can stars find themselves in potential violation of copyright laws? In 2020, high-profile people and non-celebrities alike utilize social media heavily to promote their businesses, brands, and even themselves. But where does copyright law draw the line between promotion and a potential violation?
In general, copyright is a form of intellectual property law that protects original forms of authorship, including literary, dramatic, musical, and artistic works, which extends to novels, songs, and even computer software. Generally, a piece of work is under copyright protection the instant it is created, but in order to bring a lawsuit for copyright infringement, the owner of the work should register it.
Fair Use and Today’s Social Media
Copyright law is grounded in the U.S. constitution and the last time it was generally revised was in the Copyright Act of 1976— so how does a decades-old body of laws apply to our new world of Instagram, self promotion, and paparazzi photography?
Fair use is a legal doctrine that provides an exception to copyright infringement and courts typically examine four factors when evaluating whether the fair use doctrine applies in a case: i) purpose and character of the use, ii) nature of the copyrighted work, iii) amount and substantiality of the portion used in relation to the copyrighted work as a whole, and iv) effect of the use upon the potential market for or value of the copyrighted work.
No one factor is dispositive and courts typically analyze all four factors holistically, yet the Supreme Court has held that the fourth factor is "…the single most important one.” See Campbell v. Acuff Rose Music Inc., 510 U.S. 569 (1994).
Yet how do these factors apply specifically to Instagram? In terms of the first factor, courts typically look at the purpose of the use of a copyrighted work (whether it be commercial or educational) and whether the use changes the original work by adding a new context, meaning, or input.
Using a work for commercial or for-profit reasons (such as Amy Schumer urging her followers to go to her website to purchase the sweater she wore in the paparazzi photo she posted on Instagram) is less likely to be considered fair use.
In terms of the second factor, the nature of the copyrighted work, courts typically rule that factual works are more likely to be seen as evidence of fair use rather than fictional works such as novels, poetry, or plays. The second factor is more likely to be weighed in favor of the user of copyrighted work when they use informative works such as maps or databases, rather than excerpts of a novel or original poetry.
The third factor looks at how much of the original copyrighted work the user posts—using small parts of a copyrighted work is more likely to be considered fair use rather than copying the entire work: (i.e., posting one line of an original poem rather than the entire piece).
Finally, the fourth factor examines whether the user posting the original work will cause other people to stop buying or viewing the copyrighted work—if so, then that is less likely to be seen as fair use. It can be argued that once other fans of J.Lo or Lebron James see their re-posted photos of themselves on their own social media accounts, then what incentive would there be for those fans to purchase a magazine or click on a subscription-based website to view the original content?
Fair use has been a legal doctrine that has provided exceptions to copyright law and allowed people to use copyrighted work for many years, yet it remains to be seen how future cases will utilize this doctrine when it pertains to Instagram, specifically.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Elizabeth Vulaj is an attorney admitted to practice in New York and New Jersey, with prior articles published in the New York State Bar Association Journal, the New England Law Review, and the Santa Clara High Technology Law Journal. She practices extensively in commercial litigation and intellectual property law.