A European perspective on paparazzi photographs of celebrities and lawsuits against celebrities over the posting of photographs of themselves

Over the past few months several media outlets have been reporting on a series of copyright lawsuits filed in the US against celebrities over their social media (in particular: Instagram) feeds [Katposts by Hayleigh here, here, and here].

Whilst some of these lawsuits concerned fairly straightforward issues, that is the publication of third-party photographs portraying third parties [eg, Versace publishing a photograph of Jennifer Lopez wearing Versace: here; or super-model Gigi Hadid posting a picture of her boyfriend Zayn Malik: here], others are potentially more intriguing in that they relate to the publication by celebrities of photographs of themselves.

The first of this series of recent lawsuits is the one concerning the publication, by Gigi Hadid on her Instagram account, of this photograph of herself taken by a paparazzo: 

The complaint was eventually dismissed because plaintiff had failed to comply with the registration requirement under US copyright law. Indeed, “the registration requirement is “[a] statutory condition” under which a plaintiff must obtain registration of a copyright in a work “before filing a lawsuit” based on infringement of that work.”

From a substantial standpoint, the first Gigi Hadid copyright infringement case was interesting for the variety of arguments raised by the defendant model, ranging from publicity to fair use and implied licence issues.

In the wake of this case, some commentators have raised the question whether Hadid could have made an additional argument, that is that she would be the joint author of the work on grounds that she did contribute sufficient authorship to the creation of the photographer’s work. Apparently, as of today, there has been no case decided by a US court regarding a joint authorship claim as relating to paparazzi photographs.

What would happen, however, if a case like the Hadid one was litigated in Europe? Let's consider some preliminary issues in this post, concerning in particular copyright subsistence in a paparazzo photograph and the question of authorship.

A European perspective on celebrities posting photographs of themselves without authorization

(1) Originality

The first aspect to clarify in a case in which the photograph at issue is a paparazzo photograph would  - or, more likely, should - be whether, indeed, a work of this kind could even enjoy copyright protection at all.

It is apparent that the concept of originality mandated by EU law (or, rather, case law of the Court of Justice of the European Union (CJEU)) requires (way) more than just skill, labour or effort, that is all elements that might be present in a photograph taken by a paparazzo who has waited for a long time for the target celebrity to arrive in a specific place, etc.

What the CJEU case law mandates is that the work at issue is ‘its author’s own intellectual creation’, in the sense that it is the result of ‘free and creative choices’ and ultimately carries the author’s own ‘personal touch’.

The CJEU recently summarized 10 years of EU case law on originality in its decision in Funke Medien [Katpost here]: 

[I]t is for the national court to ascertain whether […] the author was able to make free and creative choices capable of conveying to the reader the originality of the subject matter at issue, the originality of which arises from the choice, sequence and combination of the words by which the author expressed his or her creativity in an original manner and achieved a result which is an intellectual creation […], whereas the mere intellectual effort and skill [is] not relevant in that regard 

With specific regard to portrait photographs, in Painer the CJEU considered that an author can make ‘free and creative choices’ at different stages of the production of a photograph: 

In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software. 

Arguably, very few (if any) of these elements are actually ‘chosen’ by the paparazzo when taking a photograph on the street, as his/her actions depend on where the celebrity at issue decides to appear and how he/she decides to behave. It is the celebrity who decides the pose and expression that he/she wishes to assume.

In sum, the unauthorized reposting of a paparazzo photograph might not be even an infringement of copyright due to the fact that copyright would not even subsist in such work.

This said, however, simple photographs like paparazzi photographs could be still protected by applicable sui generis national rights (where available), in accordance with what Article 6 of the Term Directive expressly allows.

(2) Authorship and joint authorship

Assuming that the photograph at issue is sufficiently original, one could consider more closely the argument raised that the celebrity portrayed in the photograph is to be considered joint author of that work.

(Unfortunately), authorship and joint authorship are not (yet) areas of copyright in respect of which the EU (or the CJEU) has undertaken a general harmonization (there has only been some limited harmonization for certain types of works). Recital 14 of the Term Directive sums it up rather bluntly: 

The question of authorship of the whole or a part of a work is a question of fact which the national courts may have to decide. 

If we take the case of the UK, very recently the Court of Appeal of England and Wales revisited the issue of joint authorship in Kogan v Martin, adopting a somewhat different approach from the one envisaged at first instance [Katpost here]. In its decision, the Court of Appeal revisited the law – or, rather, the case law – on joint authorship and spelled out that there are three key criteria that need to be satisfied:

• First, there must be a collaboration between the authors, in the sense of a ‘joint project’; 
• The second element is authorship. By relying on the position adopted by Laddie J in Cala Homes, the court rejected the view that only those ‘who pushed the pen’ are joint authors: “It is the skill and effort involved in creating, selecting or gathering together the detailed concepts or emotions which the words have fixed in writing which is protected”;
• Finally, the contribution made by a joint author must be an 'authorial' one.

The position of the court is intriguing: whilst in the case of a celebrity photographed on the street without any prior warning, it appears unlikely that a collaboration could be envisaged, things might be different at, eg, red carpets, film premieres, awards ceremonies etc, that is in all those situations in which a celebrity knows that there will be photographers and actually accepts to pose for them. In all these instances, in fact, it might not be impossible to advance the view that, indeed, the celebrity at issue is joint author of the photograph:

(3) Image rights

An additional point to consider is not one relating explicitly to copyright, but rather image rights. As readers know, this is a profoundly un-harmonized area of the law, and different approaches are in place across different EU Member States.

Whilst continental European jurisdictions have long-standing histories of image rights protection (and often image rights are also included in national copyright statutes), this is not the case of jurisdictions like the UK, in which protection is only available on a fragmentary basis through reliance on different causes of action, including inherently flexible actions like passing off (as in the Rihanna case [here], the outcome of which heavily depended on the background facts), breach of confidence, and – more recently – misuse of private information, etc.

Kats (with celebrities)
(source: Zimbio)

Conclusion

This post has focused on preliminary copyright issues, notably the question of originality and authorship/joint authorship of celebrity paparazzi photographs (issues like licensing and copyright exceptions and limitations have been left out of the analysis).

Generally speaking, it may be questionable that copyright protection could be successfully invoked for all photographs whose only merit appears to be that of being at the right place at the right. In his decision in the Red Bus case, Judge Birss QC (as he then was) suggested that one thing is a photograph whose composition also includes elements arising from being at the right place at the right time and another thing is a 'mere photograph', that is "an image which is nothing more than the result of happening to click [one's own] camera in the right place at the right time." While the former situation might give rise to originality, the latter would not be enough for copyright protection to arise. In the case of paparazzi photographs taken in the street, where indeed it is mostly about 'being in the right place the right time', the same might be argued.

As discussed, arguments relating to joint authorship, especially in photographs for which the celebrity at issue has actually willingly posed, might not be unconceivable to advance, also considering that the inclusion of the celebrity at issue is what makes the photograph actually 'original' (and valuable): it is not really the background, the lighting, the angle, etc.

What do readers think?