A story in this week’s issue brings up an important legal issue. Let’s start with the story, by True contributor Alexander Cohen:
J.No
When actress Jennifer Lopez attended a party in Los Angeles, Calif., on the eve of the Golden Globes this year, Edwin Blanco was outside to take pictures for the paparazzi agency Backgrid. Lopez shared photos of her arrival on X and Instagram. Now Blanco and Backgrid are suing her for hundreds of thousands of dollars, saying they own two photos. “Ms Lopez’s unauthorized use of the Images is commercial in nature, intended for the purpose of self-promotion,” the lawyers argue. Being in a photo doesn’t give you the copyright; taking it or having hired the person who did, can. Similar lawsuits have been filed in the past against Dua Lipa, Khloe Kardashian, and Lopez herself. (AC/BBC) …If Blanco has the legal right to use Lopez’s body for his work, maybe she should have the right to use his photo for hers.
Not surprisingly, BBC didn’t even link to the posts showing either photo, and I chose not to look for them.
Alexander’s Comments
Alexander has degrees in law and philosophy, and mostly works as a freelance editor. He sent me a very short comment about his tagline, and I asked if he wanted to expand it a bit for the newsletter. It was interesting enough that I thought I should put it in my blog so that readers could weigh in with their own comments.
He writes:
I don’t think people who are in a copyrighted work should have unlimited rights to use it. To take an extreme case, surely someone who wants to publish a book of Blanco’s work should have to license it from Blanco or his employers, not from the celebrities he photographed. But it seems unfair to say a photo’s subjects have no right to use it at all.
Jennifer Lopez, 55, at the Sundance Film Festival for the premiere of Kiss of the Spider Woman in January 2025. (CC4.0 by Everwest via Wikimedia Commons)
Vitally important reasons of free speech demand that we be able to talk about one another, write about one another, and share pictures of one another — but there are similar, and similarly important, reasons we need to be able to talk about ourselves, write about ourselves, and share pictures of ourselves. We need to be able to say, ‘This is who I am.’
While a lot of the value of a photograph is created by the photographer, and the photographer does put a lot of work into it, a lot of the value also comes from the people in the image — and yet strong reasons of press freedom say that we cannot give the subjects the right to negotiate for payment, since then they could refuse to allow the photographs to be used at all and thereby suppress critical coverage. Giving the photo subjects the right to reuse the images, once published, in the context of self-promotion, would give them at least some compensation for the value they contribute and, in the case of celebrities, the intrusion they often suffer at the hands of paparazzi.
The photographer is using the subject’s body to create his product and — for good reason — does not need her consent for this use. While she can’t be given a veto over his use of the image, it feels like a violation of her autonomy to say that his depiction of her body is so thoroughly his own, and not hers, that he can veto her use of it, even when all she is doing is showing herself as she wants to be seen.
I’m not sure at what point a photo subject should have to pay for the rights. Probably a photographer should have to be paid if his image is to be used as part of an ad for a specific product, especially if this involves superimposing text on the image. (In that context, both the subject and the photo’s owner currently usually have to agree and get paid, and that’s probably as it should be.) The right to sell a photo as a poster should probably belong only to the photographer or agency, not the subject. But when someone is just sharing images of herself that she likes on social media, regardless of where that person falls on the spectrum from A-list celebrities through influencers to regular social-media users, she shouldn’t have to get permission. Not even if, as it does for many of us nowadays, improving her image contributes to her commercial opportunities.
Alexander raises a very interesting point.
Earlier Cases
In October 2019, E! reported that Splash News and Picture Agency sued Lopez in a similar situation over a photo of her walking hand-in-hand with her boyfriend, Alex Rodriguez. The case was “voluntarily dismissed” in 2020. Settled? Threatened? Impossible to say.
The 2020 suit by photographer Steve Sands was one of several with celebs featured in an interesting discussion in the blog “IPRMENTLAW” (“Where Intellectual Property meets Media & Entertainment”). I don’t find a resolution for that case.
It will be very interesting to see what comes of the latest lawsuit. If anyone can afford to press the issue, it’s J.Lo. I’m guessing there won’t be a confidential settlement in this case, and maybe it will set some new guidelines around Alexander’s points, but “we’ll see.” I hope!
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18 Comments on “Uh Oh, J.Lo”
If we give photo subjects automatic rights to reuse the image, how does that affect things like those novelty amusement park photos of guests on a roller coaster that the amusement park sells them for money? And if you say that’s different because you’re not a celebrity and nobody except you would want that photo, that’s true, but why should celebrities have more rights than average people? It’s hypotheticals like this that the courts will probably have to consider, especially if it winds its way up through the appellate level. Just look at transcripts of oral Supreme Court arguments and all the hypothetical questions the justices love asking. “If you allow X, do you need to allow Y? Why or why not?” We need to consider those here too.
I’m a little confused here. Don’t people post their novelty pictures on social media all the time? Has anyone argued (in a lawsuit or in court) that they do not have the right to do this? It seems both this use and J.Lo’s posting fall under the same “showing herself as she wants to be seen” case that Alexander mentioned.
Generally, at least at the amusement parks I’ve been to, they only let you use the photos they took on their ride if you pay them, since they own the copyright.
— Though most have given up on trying to police people from taking cellphone snaps of the screens where they’re displayed in hopes you buy the pic. -rc
Even assuming that having the photo is sufficient to be free to use it, I would think the park wouldn’t give you the photo until you paid for it.
But also note that I said “reuse.” So perhaps you wouldn’t be free to share the photo until the park had made some use of it, such as by selling it to you.
Either way, the park would probably get to sell you the photo. What it wouldn’t be able to do would be to make you pay extra for the right to share the photo.
I do not propose to treat celebrities differently from the rest of us; to the contrary, I want to let celebrities do what most of us probably do without thinking about copyright: share pictures of ourselves without worrying about who took them.
I happen to casually know a pretty successful paparazzo (he has multiple People Magazine covers to his credit). His attitude toward his subjects is pretty rational: if they use his pictures without permission in manner that would cost him money (i.e., he could have sold them had they not been posted) then he starts by politely pointing out that he owns the pictures and asking for them to be taken down. I don’t recall if he’s ever had to go to a lawyer about it.
But in a lot of situations, he’ll just ask them to give him credit; he says that it’s not worth having an adversarial relationship when he’ll probably be shooting them again in the future. I recall one truly charming picture of a model and her new girlfriend at a protest rally that appeared in People. The model liked it so much that she used it for her Facebook profile. His attitude was that the goodwill he got from that was worth far more than the extra sales it might have cost him.
That said, I’m pretty sure that photographers have won cases like this in the past. But it seems unlikely that the two photos would be valued in the hundreds of thousands, given the number of pictures of Lopez that editors have to choose from.
— That sounds like a smart approach. The problem comes when they are working for an aggressive agency, whose actions in this regard make your job harder. -rc
How could a person IN photo expect compensation? Take it to the next step, where does it end. A car that isn’t the photographers is in the immage. A building in the background? A tree on another’s property? Feels like the preverbal slippery slope. We also have laws around celebrities and privacy (they don’t have the same rights) and laws around being photographed in public. You have no right to privacy in public hence the reason police use body cameras.
Think about the so called “security” cameras that are in use. Should every one of those owe ME money when my image is captured or only when it’s sold? Am I owned money when my incredible “DAD BOD” is captured and someone posts me in the background on a for profit social media platform? Someone is making money from the site so why can’t I expect to be paid?
A photographer is a lot like a writer both professionals who expect to paid for the works they create aren’t they? So as the writer of True should you owe those who you write about? I would think not.
— I’m unclear who you are arguing with. Where does it say anywhere on this page that the photo subject is owed money for being in an image? The argument is, the subject of the photograph is a human with rights, and shouldn’t one of those rights be that they get casual use of the images they’re in that others are using to profit from your bodily image or celebrity status? -rc
If the subject of a photo likes it enough to consider it for a commercial purpose it seems to me if becomes a business decision between two options: negotiate a price with the original photographer or loosely recreate the scene with a distinct difference (e,g, different earrings or cufflinks) using a fee-for-service photographer.
I suspect rights/licensure issue regarding self-promotion usage reduces to a distinction between a one-time social media posting (image or link) and a purposeful campaign over multiple platforms.
— One cannot re-create a moment. “Here’s a re-creation of me arriving at that amazing event!” is very boring compared to “Arriving at that amazing event.” -rc
I think the subject should give credit to the photographer if he/she is a professional. When the celebrity (min this case, JLo) posts the pic on Facebook what’s to stop someone else to pick it up and potentially use it for commercial purposes?
— The same thing that keeps them from doing that from a celebrity “news” site. -rc
I honestly thought image rights covered this.
— California Civil Code § 3344 gives individuals the right to control and profit from the commercial use of their “name, voice, signature, photograph, or likeness,” which allows them to sue for damages if someone uses their image without consent for commercial gain. That sounds pretty cut and dried, but it can’t be, since there are other rights at play. The law does not apply if “The use is in connection with any news, public affairs, or sports broadcast or account… for purposes of comment, criticism, scholarship, satire, or parody,” and several other situations. Even if it’s weak on the news value, Freedom of the Press comes into play and, as a federal concept, supersedes even that pretty strong state law. -rc
The “right of publicity,” which is one of the classic four torts of privacy, is about preventing other people from creating the appearance that you endorse their product or service when you don’t. It’s not about getting to use images others create.
The California statutory language Randy linked to might be read as broader than that, and I haven’t looked into it, but I doubt it.
You do realize you have a friend/reader who started the IMDb photo galleries, built IMDb’s photo collection to over 120,000 images, started and managed IMDb’s photo submission desk for people and films listed in the IMDb to submit their own photos instead of waiting for us to acquire them, worked with studios, indies, and press agencies for years (paparazzi) to acquire and index their photos… but since you didn’t ask, he won’t force his years of experience with the topic on you.
— This page does ask, so hopefully he’ll recognize his expertise when he gets here and joins the discussion. -rc
How did Ms. Lopez get a copy of the pictures? Was she given a copy by the photographer? Were they already used in a story somewhere and she saved a copy of the photos and then used them in her posts? Were the pictures she uploaded even the same ones that the photographer had taken? (Presumably, but you’ll see why I ask this later in my post.) Did the photographer already gain the extra monetary benefits he will get for the picture being “exclusive” the first time it was published?
I followed the IPRMENTLAW link and found this — “a substantial similarity exists between the defendant’s work and the protectable elements of the plaintiff’s work”. Does this mean if I take a picture of myself and my picture is “substantially similar” to one taken by another person, I can’t use my photo? The other person owns the rights to the photograph I took of myself? It shouldn’t be, but that phrase seems to indicate that it does. Or is this only in Indian law? (The author of the post is speaking of this controversy in the US, but later refers to Indian law, so I’m unclear on where this scenario might occur.) Not to mention, what is “substantially similar”? If my picture is taken outside a venue, and later that night I take a selfie outside wearing the same clothes, jewelry, pose, etc., who owns my selfie? Can I post it on my social media?
Speaking to Alexander’s musings that celebrities “could refuse to allow the photographs to be used at all and thereby suppress critical coverage”, I ask, what is “critical coverage”? Surely not when a person is walking into a party! It’s easy to see the difference between a police mug shot and a photo taken for monetary purposes. The mugshot may be regarding critical news: the party shot is not. Admittedly, those are two ends of a very long spectrum, but could there be a differentiation based on a photograph being taken for the purpose of selling it vs. another reason? Perhaps based on if the person who took the picture is engaged in the business of photographing celebrities and selling these pictures vs. ordinary Joe who sees his favorite celebrity walking down the street?
I also wonder if Mr. Blanco could have/did send a letter to Ms. Lopez and point out that the picture was under copyright and suggest a reasonable fee for the use of it and/or a mention of him as the photographer. Maybe he did and the offer was rejected. Maybe there was a dispute based on their definitions of a reasonable fee. Maybe the relationship between the two sides is too adversarial for any type of compromise.
Maybe I should stop philosophizing this late at night. (Yes, this one.)
— The “substantially similar” bit IS odd. It’s either the same photo or it isn’t (size and cropping aside). If it’s a different photo from what the photographer took, then it’s not his photo, end of story. And if J.Lo stepped out for another pic, selfie or by a friend or her own photographer, then the paparazzi has no standing to sue. But the bottom line is, there are no answers to your questions in the sources I’ve consulted for our version of the story. -rc
I find I disagree. If you like someone else’s photo of you and want to use it for your own purposes, go ahead and ask them for permission to do so. I don’t see it as being different from any other use of any other copyrighted work.
The interesting question to me is whether there might be a fair use provision that would cover a case like this. From my limited understanding I would guess not — I don’t know how it works for pictorial works, but for text works you’re normally not allowed to use more than 10% of the source work under fair use.
— I’ll just caution that 10% is not actually a thing. Fair Use is specific to U.S. law, and perhaps in other jurisdictions if they have copied U.S. law. And to be Fair Use, it has to be for certain situations: “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Determining whether a use is Fair, “the factors to be considered shall include: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.” (17 U.S.C. §107) Note there is no percentage specified.
“Therefore,” some might assume (say, J.Lo herself), it was “news” that she appeared at some event, and she was merely reposting a photo of that “news event” and thus satisfies the Fair Use news requirement. Yet it doesn’t actually work that way, and making such assumptions could well land you in a lawsuit as we see here.
You didn’t ask about this, but it’s relevant: This is True itself doesn’t rely on Fair Use per se in rewriting news stories for its news commentary, though that may give it another layer of protection. Rather, it’s that facts and “ideas” cannot be copyrighted. We take great pains in our rewrites to use facts from our source articles, not the “expression” of those facts and ideas — the “value” that the author adds by putting interpretation and thought into it. That’s what gets copyrighted. More in our Copyright FAQ. -rc
Under longstanding copyright law, celebrities trade some privacy away in return for being, well, celebrities. That does not give them the right to use photos of themselves for their own use UNLESS they took those photos themselves OR they hired the photographer AND it was a “work for hire” agreement. Photographers own ALL rights to their photos from the moment they press the shutter (unless it’s WFH), but there are limits on how those photos can be used. Editorial use is considered a First Amendment right in the USA and it’s a freedom of the press right elsewhere. The photos cannot be used to sell or endorse a product (or imply selling or endorsing it) unless a release is signed by the subject of the photo. That applies whether they’re a celebrity or not. There are also invasion of privacy laws and expectation of privacy laws at play, so a photographer can’t fly a drone over (or into) a celebrity’s home and then sell those photos, even for editorial use.
If the celebrity is at a public event, then photos of them can be used by the photographer, a magazine, a website, etc as coverage of a news event (i.e. editorial usage). The celebrity cannot use anyone else’s property, which is what copyright law is for, without the photographer’s consent. Again, there is a difference between a person in the public eye (singer, actor, politician, pro athlete, etc, etc) and a private citizen who is not a celebrity. The private citizen can’t use the photographer’s work without consent, either, by the way. You can be sure that Ms Lopez and her management/legal team are fiercely protective of her own intellectual property (the correct name for copyrighted works) such as music, films, etc, so she should respect other people who own intellectual property, too. The real issue here is a celebrity who thinks she can do what she wants because of who she is. That does NOT cancel the applicable laws.
— Yes, Alexander (the writer of the story) and I (the publisher) are quite familiar with IP laws. And are many of my readers. What you didn’t do is address the question raised by the story and the expanded discussion on this page, nor did you disclose your own interests here: your email address indicates you work for a production company. I wouldn’t have published your comment at all, except that you are a reader yourself, even if only for a few weeks (and before this story was published). TRUE is about provoking thought and discussion, and all you talked about is the party line from one side without considering the rights that might be inherent in the other side. In such a conflict, a court decision is helpful, if very expensive to obtain. J.Lo, certainly, can afford to press the question on behalf of other celebs, and even us mere civilians. -rc
Since you asked, I worked as an editorial photographer and writer for many years and was very involved in such matters. When my photos were used without my permission or payment, they settled out of court and someone got fired for doing it.
My e-mail address dates from 1995 and related to work I was doing at the time on soundtracks for video documentaries. I liked it and have kept it ever since through several ISPs. I also used the company name (which is what it’s from) when I published several books.
I’m a recent RE-subscriber, not a new subscriber. After being a subscriber for (I’m guessing) 15+ years, the weekly e-mails stopped coming and I had to resubscribe.
And yes, I expressed my views from my side of the issue. It’s not for me to guess at how the other side of it might feel. Let JLo answer for herself.
Any other questions? ;-))
— Thanks. It would indeed be fun for J.Lo to state her side here, but even if she read the page I’m sure her attorney would advise silence. -rc
JLo’s counsel would probably “advise silence,” as you say, Randy, but it would be interesting to get a comment from someone else famous enough for paparazzi to be an issue in their life. Unfortunately, I don’t know any such person.
As for your experience, Jeff: In 1995, the world was very different. You say that when people used your photos without permission, they were fired, which implies that they were using the photos in their work for employers who could fire them. This story is about a celebrity posting on her own social media; granted, that might be done for her by a social-media professional, but it might not be. And it’s that personal platform that I’m talking about here. So let me ask: How recent is your experience? And why do you think it’s fair that you can use a celebrity’s body for your work whether she likes it or not, but she can’t use your photo for hers?
If we give photo subjects automatic rights to reuse the image, how does that affect things like those novelty amusement park photos of guests on a roller coaster that the amusement park sells them for money? And if you say that’s different because you’re not a celebrity and nobody except you would want that photo, that’s true, but why should celebrities have more rights than average people? It’s hypotheticals like this that the courts will probably have to consider, especially if it winds its way up through the appellate level. Just look at transcripts of oral Supreme Court arguments and all the hypothetical questions the justices love asking. “If you allow X, do you need to allow Y? Why or why not?” We need to consider those here too.
I’m a little confused here. Don’t people post their novelty pictures on social media all the time? Has anyone argued (in a lawsuit or in court) that they do not have the right to do this? It seems both this use and J.Lo’s posting fall under the same “showing herself as she wants to be seen” case that Alexander mentioned.
Generally, at least at the amusement parks I’ve been to, they only let you use the photos they took on their ride if you pay them, since they own the copyright.
—
Though most have given up on trying to police people from taking cellphone snaps of the screens where they’re displayed in hopes you buy the pic. -rc
Even assuming that having the photo is sufficient to be free to use it, I would think the park wouldn’t give you the photo until you paid for it.
But also note that I said “reuse.” So perhaps you wouldn’t be free to share the photo until the park had made some use of it, such as by selling it to you.
Either way, the park would probably get to sell you the photo. What it wouldn’t be able to do would be to make you pay extra for the right to share the photo.
I do not propose to treat celebrities differently from the rest of us; to the contrary, I want to let celebrities do what most of us probably do without thinking about copyright: share pictures of ourselves without worrying about who took them.
I happen to casually know a pretty successful paparazzo (he has multiple People Magazine covers to his credit). His attitude toward his subjects is pretty rational: if they use his pictures without permission in manner that would cost him money (i.e., he could have sold them had they not been posted) then he starts by politely pointing out that he owns the pictures and asking for them to be taken down. I don’t recall if he’s ever had to go to a lawyer about it.
But in a lot of situations, he’ll just ask them to give him credit; he says that it’s not worth having an adversarial relationship when he’ll probably be shooting them again in the future. I recall one truly charming picture of a model and her new girlfriend at a protest rally that appeared in People. The model liked it so much that she used it for her Facebook profile. His attitude was that the goodwill he got from that was worth far more than the extra sales it might have cost him.
That said, I’m pretty sure that photographers have won cases like this in the past. But it seems unlikely that the two photos would be valued in the hundreds of thousands, given the number of pictures of Lopez that editors have to choose from.
—
That sounds like a smart approach. The problem comes when they are working for an aggressive agency, whose actions in this regard make your job harder. -rc
How could a person IN photo expect compensation? Take it to the next step, where does it end. A car that isn’t the photographers is in the immage. A building in the background? A tree on another’s property? Feels like the preverbal slippery slope. We also have laws around celebrities and privacy (they don’t have the same rights) and laws around being photographed in public. You have no right to privacy in public hence the reason police use body cameras.
Think about the so called “security” cameras that are in use. Should every one of those owe ME money when my image is captured or only when it’s sold? Am I owned money when my incredible “DAD BOD” is captured and someone posts me in the background on a for profit social media platform? Someone is making money from the site so why can’t I expect to be paid?
A photographer is a lot like a writer both professionals who expect to paid for the works they create aren’t they? So as the writer of True should you owe those who you write about? I would think not.
—
I’m unclear who you are arguing with. Where does it say anywhere on this page that the photo subject is owed money for being in an image? The argument is, the subject of the photograph is a human with rights, and shouldn’t one of those rights be that they get casual use of the images they’re in that others are using to profit from your bodily image or celebrity status? -rc
If the subject of a photo likes it enough to consider it for a commercial purpose it seems to me if becomes a business decision between two options: negotiate a price with the original photographer or loosely recreate the scene with a distinct difference (e,g, different earrings or cufflinks) using a fee-for-service photographer.
I suspect rights/licensure issue regarding self-promotion usage reduces to a distinction between a one-time social media posting (image or link) and a purposeful campaign over multiple platforms.
—
One cannot re-create a moment. “Here’s a re-creation of me arriving at that amazing event!” is very boring compared to “Arriving at that amazing event.” -rc
I think the subject should give credit to the photographer if he/she is a professional. When the celebrity (min this case, JLo) posts the pic on Facebook what’s to stop someone else to pick it up and potentially use it for commercial purposes?
—
The same thing that keeps them from doing that from a celebrity “news” site. -rc
I honestly thought image rights covered this.
—
California Civil Code § 3344 gives individuals the right to control and profit from the commercial use of their “name, voice, signature, photograph, or likeness,” which allows them to sue for damages if someone uses their image without consent for commercial gain. That sounds pretty cut and dried, but it can’t be, since there are other rights at play. The law does not apply if “The use is in connection with any news, public affairs, or sports broadcast or account… for purposes of comment, criticism, scholarship, satire, or parody,” and several other situations. Even if it’s weak on the news value, Freedom of the Press comes into play and, as a federal concept, supersedes even that pretty strong state law. -rc
The “right of publicity,” which is one of the classic four torts of privacy, is about preventing other people from creating the appearance that you endorse their product or service when you don’t. It’s not about getting to use images others create.
The California statutory language Randy linked to might be read as broader than that, and I haven’t looked into it, but I doubt it.
You do realize you have a friend/reader who started the IMDb photo galleries, built IMDb’s photo collection to over 120,000 images, started and managed IMDb’s photo submission desk for people and films listed in the IMDb to submit their own photos instead of waiting for us to acquire them, worked with studios, indies, and press agencies for years (paparazzi) to acquire and index their photos… but since you didn’t ask, he won’t force his years of experience with the topic on you.
—
This page does ask, so hopefully he’ll recognize his expertise when he gets here and joins the discussion. -rc
Hmm, did she sign a model release authorizing their commercial use of her image? That’s how it works for regular commercial photographers.
storm in a tea cup.
these is the crap that makes the USA an object of ridicule
I have questions. So many questions.
How did Ms. Lopez get a copy of the pictures? Was she given a copy by the photographer? Were they already used in a story somewhere and she saved a copy of the photos and then used them in her posts? Were the pictures she uploaded even the same ones that the photographer had taken? (Presumably, but you’ll see why I ask this later in my post.) Did the photographer already gain the extra monetary benefits he will get for the picture being “exclusive” the first time it was published?
I followed the IPRMENTLAW link and found this — “a substantial similarity exists between the defendant’s work and the protectable elements of the plaintiff’s work”. Does this mean if I take a picture of myself and my picture is “substantially similar” to one taken by another person, I can’t use my photo? The other person owns the rights to the photograph I took of myself? It shouldn’t be, but that phrase seems to indicate that it does. Or is this only in Indian law? (The author of the post is speaking of this controversy in the US, but later refers to Indian law, so I’m unclear on where this scenario might occur.) Not to mention, what is “substantially similar”? If my picture is taken outside a venue, and later that night I take a selfie outside wearing the same clothes, jewelry, pose, etc., who owns my selfie? Can I post it on my social media?
Speaking to Alexander’s musings that celebrities “could refuse to allow the photographs to be used at all and thereby suppress critical coverage”, I ask, what is “critical coverage”? Surely not when a person is walking into a party! It’s easy to see the difference between a police mug shot and a photo taken for monetary purposes. The mugshot may be regarding critical news: the party shot is not. Admittedly, those are two ends of a very long spectrum, but could there be a differentiation based on a photograph being taken for the purpose of selling it vs. another reason? Perhaps based on if the person who took the picture is engaged in the business of photographing celebrities and selling these pictures vs. ordinary Joe who sees his favorite celebrity walking down the street?
I also wonder if Mr. Blanco could have/did send a letter to Ms. Lopez and point out that the picture was under copyright and suggest a reasonable fee for the use of it and/or a mention of him as the photographer. Maybe he did and the offer was rejected. Maybe there was a dispute based on their definitions of a reasonable fee. Maybe the relationship between the two sides is too adversarial for any type of compromise.
Maybe I should stop philosophizing this late at night. (Yes, this one.)
—
The “substantially similar” bit IS odd. It’s either the same photo or it isn’t (size and cropping aside). If it’s a different photo from what the photographer took, then it’s not his photo, end of story. And if J.Lo stepped out for another pic, selfie or by a friend or her own photographer, then the paparazzi has no standing to sue. But the bottom line is, there are no answers to your questions in the sources I’ve consulted for our version of the story. -rc
I find I disagree. If you like someone else’s photo of you and want to use it for your own purposes, go ahead and ask them for permission to do so. I don’t see it as being different from any other use of any other copyrighted work.
The interesting question to me is whether there might be a fair use provision that would cover a case like this. From my limited understanding I would guess not — I don’t know how it works for pictorial works, but for text works you’re normally not allowed to use more than 10% of the source work under fair use.
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I’ll just caution that 10% is not actually a thing. Fair Use is specific to U.S. law, and perhaps in other jurisdictions if they have copied U.S. law. And to be Fair Use, it has to be for certain situations: “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Determining whether a use is Fair, “the factors to be considered shall include: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.” (17 U.S.C. §107) Note there is no percentage specified.
“Therefore,” some might assume (say, J.Lo herself), it was “news” that she appeared at some event, and she was merely reposting a photo of that “news event” and thus satisfies the Fair Use news requirement. Yet it doesn’t actually work that way, and making such assumptions could well land you in a lawsuit as we see here.
You didn’t ask about this, but it’s relevant: This is True itself doesn’t rely on Fair Use per se in rewriting news stories for its news commentary, though that may give it another layer of protection. Rather, it’s that facts and “ideas” cannot be copyrighted. We take great pains in our rewrites to use facts from our source articles, not the “expression” of those facts and ideas — the “value” that the author adds by putting interpretation and thought into it. That’s what gets copyrighted. More in our Copyright FAQ. -rc
Under longstanding copyright law, celebrities trade some privacy away in return for being, well, celebrities. That does not give them the right to use photos of themselves for their own use UNLESS they took those photos themselves OR they hired the photographer AND it was a “work for hire” agreement. Photographers own ALL rights to their photos from the moment they press the shutter (unless it’s WFH), but there are limits on how those photos can be used. Editorial use is considered a First Amendment right in the USA and it’s a freedom of the press right elsewhere. The photos cannot be used to sell or endorse a product (or imply selling or endorsing it) unless a release is signed by the subject of the photo. That applies whether they’re a celebrity or not. There are also invasion of privacy laws and expectation of privacy laws at play, so a photographer can’t fly a drone over (or into) a celebrity’s home and then sell those photos, even for editorial use.
If the celebrity is at a public event, then photos of them can be used by the photographer, a magazine, a website, etc as coverage of a news event (i.e. editorial usage). The celebrity cannot use anyone else’s property, which is what copyright law is for, without the photographer’s consent. Again, there is a difference between a person in the public eye (singer, actor, politician, pro athlete, etc, etc) and a private citizen who is not a celebrity. The private citizen can’t use the photographer’s work without consent, either, by the way. You can be sure that Ms Lopez and her management/legal team are fiercely protective of her own intellectual property (the correct name for copyrighted works) such as music, films, etc, so she should respect other people who own intellectual property, too. The real issue here is a celebrity who thinks she can do what she wants because of who she is. That does NOT cancel the applicable laws.
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Yes, Alexander (the writer of the story) and I (the publisher) are quite familiar with IP laws. And are many of my readers. What you didn’t do is address the question raised by the story and the expanded discussion on this page, nor did you disclose your own interests here: your email address indicates you work for a production company. I wouldn’t have published your comment at all, except that you are a reader yourself, even if only for a few weeks (and before this story was published). TRUE is about provoking thought and discussion, and all you talked about is the party line from one side without considering the rights that might be inherent in the other side. In such a conflict, a court decision is helpful, if very expensive to obtain. J.Lo, certainly, can afford to press the question on behalf of other celebs, and even us mere civilians. -rc
Since you asked, I worked as an editorial photographer and writer for many years and was very involved in such matters. When my photos were used without my permission or payment, they settled out of court and someone got fired for doing it.
My e-mail address dates from 1995 and related to work I was doing at the time on soundtracks for video documentaries. I liked it and have kept it ever since through several ISPs. I also used the company name (which is what it’s from) when I published several books.
I’m a recent RE-subscriber, not a new subscriber. After being a subscriber for (I’m guessing) 15+ years, the weekly e-mails stopped coming and I had to resubscribe.
And yes, I expressed my views from my side of the issue. It’s not for me to guess at how the other side of it might feel. Let JLo answer for herself.
Any other questions? ;-))
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Thanks. It would indeed be fun for J.Lo to state her side here, but even if she read the page I’m sure her attorney would advise silence. -rc
JLo’s counsel would probably “advise silence,” as you say, Randy, but it would be interesting to get a comment from someone else famous enough for paparazzi to be an issue in their life. Unfortunately, I don’t know any such person.
As for your experience, Jeff: In 1995, the world was very different. You say that when people used your photos without permission, they were fired, which implies that they were using the photos in their work for employers who could fire them. This story is about a celebrity posting on her own social media; granted, that might be done for her by a social-media professional, but it might not be. And it’s that personal platform that I’m talking about here. So let me ask: How recent is your experience? And why do you think it’s fair that you can use a celebrity’s body for your work whether she likes it or not, but she can’t use your photo for hers?