A photographer is suing Jennifer Lopez for $150,000 for using a photograph of herself on her own Instagram. Is this a case of “copyright trolling,” or did J. Lo make a costly mistake? More importantly, how can you prevent the same thing from happening to you?
The prolific actress and singer was served with the lawsuit yesterday, April 20, 2020, in the Southern District of New York.
Steven Sands, a high-profile photographer, claims that in 2017 Lopez used one of his pictures without permission when posting it on her Instagram account. It then received over 650 thousand likes from Lopez’s 118 million followers.
This is not the first time that Sands has sued someone for using his copyrighted work. In 2017, he sued multimedia conglomerate Bauer Media over photographs that he took of Emily Ratajkowski.
Sands is represented by attorney Richard Liebowitz, a man named “World’s Worst Copyright Trolling Lawyer” by Techdirt.com. Whether that title is a badge of honor or a mark of shame depends on your perspective, but between March 11 and March 27 of this year, Liebowitz filed 51 lawsuits, accounting for 39% of all copyright lawsuits during the COVID-19 Pandemic.
Sands demands actual damages and statutory damages for the use of his copyrighted work. Whereas actual damages can be a somewhat speculative figure, statutory damages amount to $150,000 per violation under Title 17 of the U.S. Code, Section 504.
This raises the question: How can you be sued for posting pictures of yourself on Instagram? Well, if you are an online personality or looking to become one (and you don’t have deep pockets like J. Lo), then you should pay attention because your entire business could be at stake. Simply put, in the eyes of the law, Sands has every right to bring this case. Copyrights belong to the artist who created the underlying piece of art. That means photographs belong to the photographers, not to the person in the picture.
Is that it, then? The photographer always wins, and celebrities and influencers cannot share or control pictures of themselves posted online? Not quite. As usual, with the law, the real answer is: It depends, and if you ever face this issue yourself, you should always consult a lawyer. But here are some key pitfalls to be aware of, as well as a few ways to protect yourself if you aspire to be the next Jennifer Lopez.
First of all, every celebrity and influencer should know that when photographers draft their contracts, they usually retain the rights to all of their work. Photographers can then secure their copyright on an entire collection of photographs by registering them as a collective work. This is useful for photographers who colloquially shoot a whole roll of film, even though few people still use film these days. By this analogy, each photo from a shoot can be attributed to a collective work and registered with the Copyright Office. After the collection is registered, the photographer may then license one photo, a group of photos, or the entire collection to anyone who wants to use it – for example, on Instagram.
The best way for you to control professional pictures of yourself is to hire the photographer yourself and agree in the contract that all the photos belong to you. A good lawyer can draft that contract for you, and once you have it, you can use that same contract with different photographers. If J. Lo had done that, she would be free and clear. The problem, however, is that influencers and celebrities are often not the ones contracting for pictures like these. Instead, they are hired to model for an agency or the photographer. In that case, the agency or the photographer usually insists on retaining the rights to the portfolio, and they include that clause in the fine print of the contract. That is the norm, so be sure to read your contract carefully or have your lawyer read it for you. Because even if you don’t have the leverage to renegotiate a modeling contract, it is still critical to understand what you can and cannot do with the photos from your session. Otherwise, you might get a nasty (and expensive) letter from the “World’s Worst Copyright Trolling Lawyer.” At least you won’t be alone.
If it is starting to feel like you will never control your image or promote yourself online, do not lose hope. There are still a few ways to use a photograph that has been copyrighted by another person. The first is to license the photo. Licenses can be drafted for any number of purposes and any size of distribution. They can even be limited to specific places online, such as Instagram or Twitter feeds. For example, you could negotiate a deal to post the pictures on your social media accounts and give credit to the photographer. But be careful, and do not assume that giving credit gives you a right to post a picture. Typical disclaimers like “No copyright infringement intended” or “I don’t claim to own this photo” do absolutely nothing except maybe give you a false sense of security. Such disclaimers might make your case worse because they show that you knew you did not own the picture, yet you posted it anyway. Ignorance of the law is no excuse, which is why you cannot rely on anonymous advice from Reddit or well-meaning followers on Twitter. You need an experienced copyright lawyer.
Aside from licensing, copyrights are transferrable. If your best photos are languishing in a dusty portfolio owned by someone with only a fraction of your following and exposure, you might have excellent leverage to buy the entire portfolio outright. Here, again, your lawyer can help you find a creative and affordable solution.
The attorneys at Insigne LLP have decades of experience dealing with copyright law. Whether you are looking to negotiate a modeling or endorsement deal, control the image of your brand online, or buy or sell your copyrights to others, Insigne can help. Charles Blazer (firstname.lastname@example.org) has over a decade of experience negotiating IP transactions and helping creative people protect their work.