The_Hollywood_Reporter__February_07_2018

The Business
Legal
Who Owns That Instagram Pic?
As stars and web influencers use unlicensed paparazzi shots to monetize social media accounts,
photographers now are filing six-figure lawsuits: ‘This is a form of trolling’ By Ashley Cullins
Paparazzi long have
built lucrative careers on
capturing candids of
Hollywood stars, but now they’re
exploring a new source of revenue:
suing those same stars for
posting their pics on social media
without permission.
Khloe Kardashian, Jessica
Simpson and Gigi Hadid have each
recently been sued for copyright
infringement after paparazzi
photos of themselves were shared
on their official social media
accounts. On Feb. 1, NFL star Odell
Beckham Jr. sued Splash News
for extortion after
reportedly receiving
a $40,000 demand
for sharing an
Reynolds image of himself on
Instagram.
Typically, paparazzi
pics can easily be
licensed for a couple
Keenan of hundred bucks
a pop. But if a star
sees a photo online and shares it
without permission, the move
could lead to six-figure damages if
it was willful.
“These lawsuits are ironic and
unfair,” says Neel Chatterjee, a
Silicon Valley-based intellectual
property litigator who has handled
big-ticket suits for Facebook.
↑ From left: Simpson, Hadid and Kardashian
have been sued for posting paparazzi
photographs on their social media accounts.
“Paparazzi take pictures of them
without authorization but then
get irritated when the people they
took pictures of use the pictures.
This is a form of trolling — where
paparazzi see a new medium
to try to monetize their work.”
Dan Taylor, a spokesman for
BackGrid, a celebrity photo agency
formed in 2016 when Xposure,
AKM-GSI and FameFlynet USA
merged, says his company outsources
its copyright enforcement
to a Beverly Hills-based outfit
called Okularity, which scans the
internet and print publications
for clients’ photographs. Okularity
then determines whether taking
action is appropriate or if an
unauthorized use qualifies for
an exception under copyright laws.
Xposure is the company suing
Kardashian, and Taylor says
unlicensed sharing shouldn’t
be tolerated.
“It always hurts the licensing
market because it’s rarely transformative
and it’s displayed to the
same audience and with the same
purpose as BackGrid’s paying clients,”
says Taylor. “Unauthorized
distribution virtually destroys
the licensing value of an image.”
While neither celebrity photography
nor social media is
new, experts say the ability for
influencers to now monetize
their posts is most likely what’s
driving the legal clashes. “Social
media is actually a business for
celebrities,” says attorney Jeffrey
Greenbaum, who specializes
in advertising and intellectual
property law. “It’s not surprising
that photographers are saying,
‘If you’re going to make money off
your social media feed, it’s not
fair that you’re going to take my
photograph and not pay for a
license to use it.’ ”
While the suits have been geared
toward street photos, awards-season
red carpet images could spark
the next wave of lawsuits.
Sharing a photo registered
with the U.S. Copyright Office
could trigger damages of as
much as $30,000, even absent a
finding that the infringement
was willful. But without that
registration, a photographer
would have to prove that he or
she was damaged by the use
— and entertainment litigator
Jeremiah Reynolds says proving
significant damages would
be difficult with red carpet
pics because of the sheer volume
of nearly identical images.
“One could argue there are
20 sets of the same photo floating
around, so your damages are zero,”
says Reynolds. “You’d subpoena
the photo agencies and see what
they sold for and offer to pay
the guy 200 bucks to go away.”
Stefanie Keenan, a notable
Hollywood events and fashion
photographer who shoots for
Getty, tells THR she doesn’t mind
if stars share her images with
watermarks that credit her. “I
would rather have that happen
than see stars using my images
without a watermark after not
having purchased the image or
giving any credit to the photographers
— or major publications
reposting it from the star’s social
media, again, without financial
compensation,” she says.
While other photographers
may share Keenan’s outlook, attorneys
still recommend caution.
“This is an area where celebrities
and their representatives
should be extremely careful,” says
Greenbaum. “Giving credit might
in some circumstances make the
photographer less aggravated by
the use, but it’s unlikely to change
the analysis that using someone’s
photograph without consent most
of the time is going to be copyright
infringement in this kind
of situation.”
Natalie Jarvey and Chris Gardner
contributed to this report.
What a Following Is Worth
A sponsored post can be very lucrative — if you’re popular
Khloe Kardashian 72.1 M followers $406,700 estimated value
Gigi Hadid 38.1 M followers $215,000 estimated value
Jessica Simpson 4.1 M followers $23,400 estimated value
Source: Inkifi; based on $5.70 per every 1,000 followers on Instagram
SIMPSON, HADID: SPLASH NEWS. KARDASHIAN: AKM-GSI. KEENAN: JESSE GRANT/WIREIMAGE. REYNOLDS: TODD WILLIAMSON/GETTY IMAGES FOR THR.
THE HOLLYWOOD REPORTER
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FEBRUARY 7, 2018