Dua Lipa is the latest celebrity involved in the slew of copyright infringement lawsuits related to unauthorized Instagram postings by celebrities of their paparazzi photographs. In Integral Images Inc. v. Dua Lipa, Integral sued Lipa for posting on her Instagram account its below copyrighted photo of Lipa waiting in line at an airport without Integral’s permission. *Cough*title*cough*
As The Hollywood Reporter (THR) said, “paparazzi pics can easily be licensed for a couple of hundred bucks a pop.” However, because of the Copyright Act’s provision of statutory damages, posting without permission a copyrighted photograph, like the one above, could lead to five-figure liability and if the infringement is willful, up to $150,000 a pop (in addition to the other side’s attorneys’ fees and costs incurred in bringing the copyright infringement lawsuit). Indeed, in the Lipa lawsuit, positioning itself to seek statutory damages, Integral emphasized Lipa’s willful infringement by alleging that she “takes an active and pervasive role in the content posted on [her] account.”
If this lawsuit seems odd to you, don’t worry, you are not alone. This lawsuit involves a photo of Lipa arguably taken without her permission by the paparazzi. But when she posted that very unauthorized photo on her own Instagram account, the paparazzi sued her. Definitely odd. Many people have characterized such lawsuits as ironic, unfair, and as trolling by the paparazzi. However, it bears noting that simply being featured in a photo does not grant someone a right to use it, even if that photograph was taken without the featured persons' permission. Indeed, after being involved in a similar lawsuit by the paparazzi in 2019, Emily Ratajkowski highlighted in a personal essay in New York Magazine's The Cut: “I learned . . . from my own lawyer that despite being the unwilling subject of the photograph, I could not control what happened to it.”
Unfortunately for celebrities, these lawsuits are commonplace (lending further support to the trolling argument). For instance: In 2020, Lebron James; in 2019, in addition to Ratajkowski, Gigi Hadid and Justin Bieber; and in 2017, Khloe Kardashian were involved in similar lawsuits by the paparazzi. And to make matters worse, with the opportunities for celebrities to monetize content and connect with their fan base ever increasing [be it through their social media accounts, Non-Fungible Tokens (NFTs), social tokens (covered in detail by my colleagues Jeremy Goldman and Hannah Taylor here, here, and here), etc.], these lawsuits may be here to stay. Indeed, in the Kardashian lawsuit, the paparazzi highlighted how “Kardashian's Instagram post made the photograph immediately available to her nearly 67 million followers and others, consumers of entertainment news—and especially news and images of Kardashian herself, as evidenced by their status as followers of Kardashian—who would otherwise be interested in viewing licensed versions of the photograph in the magazines and newspapers that are plaintiff's customers." In other words, it is clear that the paparazzi is keeping an eye out on celebrities’ monetization avenues and fan base connections, and as those avenues and connections continue to grow such lawsuits will as well. As my firm's Managing Partner Jeffrey Greenbaum said to THR, “[t]his is an area where celebrities and their representatives should be extremely careful.”
FWIW, seeking timely legal advice is always helpful.
** Loves will know the reference.