Gigi Hadid did it. Jennifer Lopez, as well. Same for Khloe Kardashian and, most recently, Emily Ratajkowski, Mandy Moore and Amy Schumer.
The chain that binds them is not a new cauliflower- and celery juice-laden diet or a shared personal trainer (though Lopez and Kardashian have both been known to sweat alongside pro Gunnar Peterson), but rather their Instagram habits, specifically the ones that have made them a target for photographers' lawsuits.
For us regulars, stealing a photo is no big thing. If your hair looks great in that one snap your friend posted and they got your good side, then repost without worry. (Unless your pal is a professional photographer and also kind of a jerk.) But when celebs snag a particularly fierce photo of themselves off the Internet to share with their millions of Instagram and Twitter followers, well, they're in danger.
The issue at hand is copyright infringement. Because the pictures Hadid, Lopez, Kardashian (along with Justin Bieber, Ariana Grande, Jessica Simpson and scores of other stars) published were captured by photographers who make their living off of selling said shots, they're not all that happy when stars share them with their followers for free, thus instantly devaluing their worth. And, no, it doesn't matter that the pictures are actually of the celebrity themselves. They don't own the actual image, provided it was captured in a public place.
"If you paint a portrait of a celebrity, that celebrity can't then take your canvas and do what he wants with it just because it's his or her image," Domenic Romano and Leah Norod, a managing partner and entertainment law associate at NYC-based Romano Law PLLC, point out to E! News. "The same is true of a photograph—there are two sets of rights, that of the subject and that of the creator."
So in order to use that image and avoid an infringement claim, explain the attorneys, "Celebrities should clear the usage with the photographer and pay them a fair sum that correlates with the proposed use." In other words, they should shell out the same licensing fee the photog would charge to a magazine or website that might want to publish it.
That's likely what Bieber did after he was hit with a suit for the "unauthorized reproduction and public display" of a shot Robert Barbera had captured of him and pal Rich Wilkerson Jr. in a car. Days later, he credited Barbera and told the matter had been settled, instructing his more passionate followers to stand down: "Stop all the fuss we worked it out! He's a good dude!!!!!"
The actual licensing fee is generally nominal, maybe a few hundred dollars, but lawsuits tend to reach into the six figures, with photographers claiming they're losing big by not being able to sell the image to multiple outlets. When Lopez posted a photo of herself holding fiancé Alex Rodriguez's hand in New York City, Splash News and Picture Agency jumped into action, asserting the original pic was "creative, distinctive and valuable," but with her Instagram post, Lopez made it available to her 103 million followers who are "consumers of entertainment news—and especially news and images of Lopez herself, as evidenced by their status as followers of her—who would otherwise be interested in viewing licensed versions of the Photograph in the magazines and newspapers that are plaintiff's customers."
Certainly with the rise of social media, photographers have had to become more vigilant about monitoring the use of their work, but attorney Jeffrey Greenbaum has another theory about why they're trolling through Instagram, lawsuit trigger finger at the ready.
Thanks to the advent of sponcon, celebrity influencers are pocketing hundreds of thousands of dollars for all those #ad posts. "Social media is actually a business for celebrities," Greenbaum, an advertising and intellectual property lawyer explained to The Hollywood Reporter. "It's not surprising that photographers are saying, 'If you're going to make money off your social media feed, it's not fair that you're going to take my photograph and not pay for a license to use it.' "
Some stars are proposing a type of middle ground. When Hadid was hit for sharing a photo of ex-boyfriend Zayn Malik, she took to social media to explain herself. Though she took umbrage with the fact that, as she put it, "these people make money off us everyday, LEGALLY stalking us day in, and day out," she did say she was willing to at least credit the work.
Noting she had simply recycled an image she found on Twitter, she explained, "I had no way of knowing which of the 15+ photographers outside that day took these exact photos; if the person had just commented on my photo I would have been happy to tag and give credit."
Which, might be enough to stave off a lawsuit. Photographer Giles Harrison told Buzzfeed he felt snappers "should be flattered that a celebrity thinks your picture is good enough to be posted on their social media. But others need to think about that money.
Any time a celebrity posts a photo that isn't theirs they "open themselves up to liability," say Romano and Norod, "There is an infringement taking place and with that comes a significant risk of a lawsuit. Bottom line—if you use someone's work, pay them, no matter who you are!"
Unless it's your friend Karen who captured you in the best light. Then, you know, work it out amongst yourselves.
(Originally published Oct. 24, 2019, at 3 a.m. PT)