Photo by Cristian Dina on Pexels.com

By: Alex Nelson

The rise of social media usage across the world has been nothing short of meteoric. Nearly thirty-percent of the 7.7 billion people on Earth use Facebook. TikTok, a social media company that launched in 2016, hit half a billion users by mid-2018. Instagram users have increased to one billion since the app’s launch in 2010. The popularity of social media has created new markets and commercial opportunities for individuals who are able to amass large numbers of followers. Celebrities typically are able to get the largest number of followers and thus have the most opportunities to monetize their social media accounts. Kylie Jenner, for example, can earn up to an estimated $1.2 million per Instagram post. Although she is certainly on the high end of the spectrum for earnings per post, it is fairly common for a celebrity to pull in around $100,000 per post.

Younger generations have been notoriously casual about photographic rights due in part to the newfound accessibility of celebrity images. A common occurrence is for celebrities to post a photograph of themselves that was taken by another person on Instagram only to then be sued by the actual copyright holder of the image. Recently, Gigi Hadid found herself in the midst of litigation as a result of posting a photograph of herself on Instagram that was actually taken by a paparazzo.  When Gigi posted the photograph in question, her Instagram page had over 44 million followers. The disputed photograph received more than 1.6 million likes before Hadid took it down. Hadid wanted the right to be able to post a photograph of herself, exploring the legal intersection of a celebrity’s right of publicity and a photograph’s rights to an image she took.

The “right of publicity” is a form of intellectual property right that protects against the misappropriation of a person’s name, likeness and perhaps other indicia of personal identity for commercial benefit. With the proliferation of social media, rights of publicity have become more complex. Although the photographer owns the copyright in the pictures she takes, even if they depict other people, the people in the pictures have a common law right of publicity, which allows them to limit association of their name and likeness with commercial products and services. Advertisers have to procure both a copyright license to a photo and a model release of the person depicted.

Ultimately, Hadid’s case was not litigated because the paparazzo failed to register the photo with the U.S. Copyright Office and thus could not allege a prima facie case of copyright infringement. Although the relevant New York statute provides that the right of publicity only covers the unauthorized usage of another’s image for “advertising and trade purposes” it is possible that modern courts could read the statute to include Instagram posts of a celebrity as having a “commercial purpose.” If this case had gone to trial then a substantive decision could have clarified whether Hadid has the right to control how others profit from her likeness or whether a paparazzo’s use of an image constitutes a fair use.

Now that social media is one of the predominant forms of communication it might be time for legislators to rethink whether the old rules are able to adequately accommodate new realities. It will be interesting to see whether other celebrities and influencers will try to make right of publicity claims in order to prevent paparazzi and other beneficiaries from using their likenesses for commercial gain.