LACUNA IN COPYRIGHT LAWS WITH REGARDS TO SOCIAL MEDIA: ANSHUL PARSAI & OMKAR APUGOL

LACUNA IN COPYRIGHT LAWS WITH REGARDS TO SOCIAL MEDIA

Author: Anshul Parsai [1]

Co-Author: Omkar Apugol [2]

ISSN: 2582-3655

Abstract

The social media market has expanded exponentially in recent years, all thanks to the availability of cheap and good internet to the masses. But are the intellectual property laws competent enough to tackle the problems that come along with the advent of social media? This article talks about one such problem that the laws do not particularly answer to just yet. The article looks into the issues that arise out of a celebrity posting a paparazzi photograph of herself on social media like the recent case of Gigi Hadid, an American supermodel, the developments, in that case, has been the basis of this article. Hadid was recently sued for posting a paparazzi photograph of herself on Instagram and for the first time in Hollywood the celebrity did not just settle the matter outside court, rather she put forward the side of the celebrity in this scenario. There have been many cases of a similar nature, but Hadid is the first one to have spoken against such claims. The article discusses a possible solution to such a conflict between a photographer and a celebrity and spreads some light on the concept of co-authorship thereby allowing an equitable solution to the conundrum of ownership of such paparazzi photographs. The article deliberates not only over the duty of the authorities (Legislature and The Judiciary) but the social media platforms as well, to address the lacunas in the copyright laws.

Introduction

Paparazzi, quite a popular word in the current era, defines an independent photographer who pursues celebrities to capture them in his or her camera, generally, such photographs show the high-profile individuals carrying out their usual routines. Such pictures are always in high demand among the fans of the celebrities as it gives the fans utmost pleasure and a sense of joy to see their idols in their most humble avatar. Later such pictures are utilised by multiple agencies who keep tabs on the daily lives of the celebrities.

But does the celebrity in the said picture has any rights over it? The contentions lie in the domain of copyright laws.

Copyright Scenario in the United States

The intellectual property law in the United States confers copyright protection on photographs. The US Copyright Act states that copyright subsists in any “original works of authorship fixed in any tangible medium of expression” and a photograph is thus a subject matter of copyright[3].

Copyright Scenario in India

Copyrights in India are regulated by The Copyright Act 1957, which specifies as to in which works copyrights subsist, these are:

  • Original literary, dramatic, musical and artistic works
  • Cinematograph films
  • Sound recordings[4]

Section 2(c) provides that a photograph is to be considered as an artistic work for this Act. Thus, Indian law expressly provides copyright protection to photographs.

In both India and The United States, it is generally the photographer who is the owner of the ‘work’, but in certain situations, the person employing the photographer can also be the owner of the said work. It is a well-known fact that the copyright laws are more vigilant in the United States and the courts adhere to the copyright regime with utmost devotion.

Now that we are familiar with the ownership of copyrights vested in a photograph, let’s get back to the paparazzi situation. What happens if the celebrity himself or herself post such a photo on their social media handles, can the photographer object? This is not alien to the industry as instances of photographers and media companies suing celebrities for copyright violation are umpteen in number. A recent example of such a scenario would be the one involving Gigi Hadid, an American supermodel with more than 48 million followers on Instagram, which is a social media platform for posting pictures and videos. Ms. Hadid has been sued by Xclusive-lee.inc for posting her photograph on her Instagram account.

This article revolves around this ongoing feud between celebrities and freelance photographers and shall analyse the scenario considering the laws in the United States and also in India.

Facts

On October 12, 2018, Jelena Noura Hadid also known as Gigi Hadid posted a photo of herself on her Instagram account, the said picture was captured by a photographer employed by XCLUSIVE-LEE.INC on October 11, 2018, in the city of New York. Xclusive-lee alleged that Hadid had copied and posted a copyrighted photograph to her Instagram account without any license or permission from Xclusive-lee. Ms Hadid has more than 43 million followers on the social media platform and this photo attracted 1.6 million likes within 4 days of the picture being posted. Hadid took down the picture soon after the lawsuit was filed by Xclusive-Lee. This was not the first instance of Hadid being sued for copyright infringement as similar allegations were made on her in the year 2017[5] where the case settled on the litigation stage.

Plaintiff’s contentions

The plaintiff claimed to be the exclusive owner of the copyrighted photograph and had also applied for registration of the said photograph before the United States Copyright Office for a certificate of copyright registration and that by virtue of this the right to license, reproduce and distribute the said photograph lies with them. Xclusive-Lee in their plaint had 3 contentions, the plaintiff alleged that Hadid hadwillingly and intentionally infringed the plaintiff’s copyrighted work disregarding the rights belonging to Xclusive-Lee. Secondly, the plaintiff contended that Hadid had committed the wrong of contributory infringement by posting the copyrighted work and making it available to innumerable individuals including Hadid’s fan pages and various media agencies who could now use the copyrighted picture without acquiring a license or obtaining permission from the plaintiff and the fact that she has been in such a situation before indicates that she was fully aware of what she was doing. Finally, the plaintiff prayed for all gains and profits derived by the act of infringement and damages as the court may seem fit, they also prayed to prevent  Hadid and her public relations team from using the copyrighted image in any manner.

Hadid’s contentions

Hadid’s counsel submitted a 20-page motion requesting the court to dismiss the suit on multiple grounds. The plaintiff, as per the defendant’s contention, fails to establish any ownership over the photograph in question, which is the most basic requirement of any copyright claim. This contention is supported by a few facts, such as the fact that Hadid had smiled and posed for the photo whereas the photographer gave no directions over her attire, pose and position while clicking the picture indicates that Hadid had a significant contribution towards the work and she had ‘directed’ the photograph to be as it came out to be. 

The lawyer explained that before posting the picture Hadid had cropped the original picture and she was making herself the primary subject, Ms Hadid had at least cropped the picture down to 50% of the original picture which was a significant change from the original photograph.

The plaintiff had a contention regarding the monetary benefit that Hadid would make from posting the photograph but the counsel argued that Hadid had merely posted the photograph on the social media platform and made no effort to make any monetary benefits, this intention of Ms Hadid was different from the intention of the photographer, who was trying to procure profits through Hadid’s fame. Another defence that Hadid put forward was the ‘fair use exception’ which serves as a limitation of copyright. It is a doctrine that permits a copyrighted work to be used without any prior permission of the copyright holder. There exist few ‘fair use exceptions’, an example could be used for educational and/or non-profitable purposes. For any usage to fall under the fair use exception, four factors are considered,

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and relevancy of the portion taken, and
  • the impact of the act within the prospective market.[6]

Another defence that Hadid had tried to convey was that of implied licenses, Hadid’s counsel argued that since she voluntarily stopped and posed for the paparazzi photograph she had added higher value to it and it allowed for an exchange for permission to use the said photograph without undermining the photographer’s rights over the use of the picture.

These factors make Hadid’s arguments stronger as she had just posted a photo of herself on her profile, without seeking any monetary benefit out of it, the copyrighted work is a photograph and is not yet registered, and she had cropped out about 50% of the photograph before posting it on the platform.

Verdict

The Federal Court based out of Brooklyn, New York City delivered a verdict in favour of Ms Hadid. But it was not the contentions that were put forward by Hadid’s counsel that made the court pass such a decision, rather it was the supreme court’s decision in a Fourth Estate Public Benefit Corp. V. Wallstreet.Com[7] that swung the decision in Hadid’s favour. The US Supreme court in March 2019, held that for a copyright holder to commence an infringement suit, the work in question must be registered in the case mentioned above the Supreme Court had affirmed that mere application for registration of the work is not sufficient grounds for bringing a suit for infringement. The US law recognises that copyright exists from the very moment a work is created[8] but, to bring about a suit for copyright infringement registration of the said work is necessary[9].

This verdict might have helped Hadid’s fight over paparazzi pictures to a certain extent but it fails to recognise the major lacuna that copyright laws across the world suffer from. The verdict did not help resolve the issues that social media brings along to the copyright regime. This case is not an isolated instance, there have been multiple such suits brought upon the celebrities by paparazzi photographers for posting their own photographs on various social media platforms, for instance, one of the famous Instagram celebrities Khloe Kardashian was involved in a suit similar to Hadid’s in 2017, wherein she was sued by the photography agency for infringing their copyrighted picture of herself, even the likes of Niki Minaj and Ariana Grande have been subjected to such suits. Almost all of such cases are settled outside the court by the parties involved. Even in the case where such agencies are sued for trying to extort money from the celebrities, as in the case of famous American Football Star Odell Beckham Jr[10], the matter is settled outside of court. There exist certain exceptional instances like that of Kim Kardashian, who after getting dispirited by such claims, hired a personal photographer to click pictures of her, and she posts only those pictures taken by the photographer. Ms Hadid was an exception as she decided to take the matter to court instead of bowing down to pressure from the photograph agency and tried to bring light to the lacuna between the books of law and reality of social media in the 21st century.

The defence of Fair Use

The concept of fair use was the predominant defence taken up by Hadid for using the photograph of the plaintiff. The concept of fair use in the US and India is not the same. The US Copyright law provides for a four-factor test to determine the application of fair use exception as discussed in this document earlier, whereas the Indian Copyright Act under Section 52, very specifically mentions the fair use exception to infringement and its extent. The Indian concept of fair dealing as in the act is confined to a list under Section 52(a), it is to include (i) private or personal use, including research; (ii) criticism or review, whether of that work or any other work; (iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public. Hence the concept of fair use in Indian law corresponds to an exhaustive list whereas the four-factor test in the US makes their law more open to interpretation. Provided the Hadid scenario in an Indian Court of law, the fair use exception might not have been applicable, although the judiciary is always constructive in its judgements. However, there is a strong possibility that Indian Courts would have taken the opposite stand on this subject.

The Way Forward

As mentioned earlier this is not the first instance of a celebrity being sued for copyright infringement, and definitely is not the last, hence what could be a way forward in this avenue? The fair use argument, as relied upon by Hadid’s counsel, does seem fair in the first instance, but that does not weigh in both sides fairly in such situations. The celebrity would feel that they should have a right to use his or her photograph and the right to mitigate any legal action against them for posting the photo. The fact cannot be denied that a paparazzi photograph does not have much value in itself, rather it is the presence of the celebrity in the photograph that adds value to it. Having said that, the other side of the matter cannot be ignored, the photographers earn their livelihood through these pictures, and uploading them on social media results in loss of exclusivity thereby reducing the value attached to the photograph. The fair use argument put forth by Hadid is not an equitable solution to the issue at hand as it only tries to alleviate the legal responsibility of the celebrities and does not address the value of the photograph nor the monetary rights that the photographer shall merit from the photograph.

A possible solution to this conundrum could be to designate ‘co-authorship’ to the celebrity along with the photographer. Sole authorship over a paparazzi picture such as this one would not be justified, as the contributions made towards its creation are not under the control of the photographer because the photographs that are captured in such instances are not in a studio or a controlled photo-shoot where the photographer can shout out suggestions or directions to the celebrity; the paparazzi are at the mercy of the celebrity whether they acknowledge the presence of the camera or not. Hence, it is the celebrity who has higher control over the photographs in these cases.

Designating co-authorship in such cases would be a win-win scenario for both parties as neither of the two has total control over the creation of the work. Both, the photographers and the celebrities, can benefit from each other’s contributions. The celebrities, owing to their fame and connections, have all the resources to use the photograph commercially, which is not possible for most freelance photographers in the industry. Paparazzi photographers receive a one-time payment for their photographs (provided that any media agency agrees to buy them in the first place), the photographer hands over the ownership to the media agency who can then use and reuse or even license the photograph to other parties, by doing so the agency earns a hefty sum of money through royalties whereas the photographers do not receive any part of it. If the celebrities and photographers are awarded the title of co-authors then the photographer shall receive the royalties for the photographs rather than receiving a one-time payment which would be an equitable solution wherein the paparazzi would earn a better value for their work.

Conclusion

The legislators of the copyright laws could have never imagined the growth of technology and through it the birth of social media applications such as Facebook, Twitter, and Instagram. The copyright laws most certainly need a change in India as well as other countries around the world, but such changes in the law do not happen with a high level of frequency and the reasons for it may be lack of legislative interest or the tedious bureaucratic processes that are required to amend any law. Since laws are not being amended to suit social media any time soon, the responsibility is passed over to the judiciary to keep up with the evolving society we live in. But what can the judiciary do? We have witnessed in the Indian Copyright regime landmark cases such as R.G Anand vs Delux Films[11] and Twentieth Century Fox vs Sohail Maklai Entertainment[12] wherein the judiciary has provided certain guidelines to fill up the voids that are present in the Indian Copyright laws concerning idea-expression dichotomy and plagiarism in movies respectively. Thus, in scenarios like these where there is any ambiguity or incompetence in the law for a particular subject, the judiciary can take up the baton and provide for guidelines or instructions through landmark judgements. If a case similar to that of Gigi Hadid shows up in the Indian Courts, the judiciary can act proactively by clarifying the concepts of fair use, implied licenses and co-authorship in such paparazzi pictures as well as social media posts. By doing so the judiciary would set a precedent for any case which would revolve around the same material facts or issues.

Further, the social media platforms can themselves take up the initiative to define the uses of photographs posted on any particular platform, the possible way forward would be for social media sites to modify their terms and conditions in a manner which shall in prospect allow all content creators and celebrities to understand the ownership dilemma that currently the law does not solve. For instance, Instagram currently has a “repost” feature on its platform which allows people to repost another persons’ post on the application. These re-posts are generally not authorized by the owner of the photograph but once reposted the caption in the picture so reposted does credit the original post and also mentions the persons’ Instagram handle. Instagram also introduced a paid partnership feature on their application, this feature specifies to the consumers of the content that the post has been sponsored by a certain brand or company, thereby segregating the posts which result in monetary benefits from the rest. These paid partnership posts fetch the celebrities a handsome amount of money and if any photograph used in a paid partnership post is captured by a paparazzi photographer then, we believe, the paparazzi also should receive a percentage of the remuneration since there is a direct profit being made by the celebrity from the paparazzi photograph. These terms and conditions like repost and paid partnership try to mediate and fill the voids of copyright infringement on a social media platform but only amending terms and conditions of any application may not suffice. The responsibility to address any lacuna in the law or even the archaic nature of laws falls upon the legislature. The legislature is the only authority that has the right to amend the laws of a nation. Hence it is the primary duty of the legislature to make sure that the laws of the country are relevant to the changing times and that the citizens of the nation do not fall prey to the discrepancies in the law.


[1] Student, Alliance School of Law, Alliance University, Chandapura-Anekal Main Road, Bengaluru, BALLB (2016-21), ansh.parsai@gmail.com, 7828774689

[2] Student, Alliance School of Law, Alliance University, Chandapura-Anekal Main Road, Bengaluru, BBALLB (2016-21), apugolomkar9@gmail.com, 8880908254

[3] The Copyright law of the United States, § 102 (1976)

[4] Copyright Act 1957, No. 14 Acts of Parliament, 1957.

[5]Peter Cepeda v. Jelena Noura “Gigi” Hadid and IMG Worldwide, Inc

., 1:17-cv-00989-LMB-MSN (E.D. Va.) (2017)

[6]Rich Stim, Measuring Fair Use: The four Factors, Stanford UniversityLibraries, (Feb 18, 2013)

https://fairuse.stanford.edu/overview/fair-use/four-factors/.

[7]Fourth Estate Public Benefit Corp. V. Wallstreet.Com US 17–571 (2019)https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf.

[8] The Copyright law of the United States, 1976,  17 U. S. C. §106

[9]The Copyright law of the United States, 1976, 17 U. S. C. §411(a)

[10]The Fashion LawAs The Number of Paparazzi v Celebrity Copyright Cases Grows, How Big of A Problem Is This Really? THE FASHION LAW (July, 15 2019)

http://www.thefashionlaw.com/home/as-the-number-of-paparazzi-v-celebrity-copyright-cases-continues-to-grow-how-big-of-a-problem-is-this-really.

[11]R.G Anand vs Delux Films(1978) AIR S.C.C 1613

[12]Twentieth Century Fox vs Sohail Maklai Entertainment(2010) AIR BHC 2692

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