The complicated relationship between paparazzi, social media, and celebrities continues in the copyright space. We previously wrote about the cases that had emerged related to Gigi Hadid and Victoria Beckham as well as many other celebrities. Both Hadid and Beckham posted photos taken by paparazzi on their social media accounts and were subsequently sued for copyright infringement. These cases have raised interesting legal arguments at the intersection of copyright enforcement and a celebrity’s right of publicity in their own image, including whether a license could be implied when a celebrity poses for a photograph, or whether that pose creates a co-authorship interest.
Liam Hemsworth is the latest celebrity to make headlines for a related scenario. The photograph at issue in Hemsworth’s case was taken as part of a series of photos depicting him on location for production of a film released earlier this year, Isn’t It Romantic. See ECF No. 1, Splash News and Picture Agency, LLC v. Liam Hemsworth, No. 2:19-cv-10584 (C.D. Cal. Dec. 15, 2019). The photo was licensed exclusively to The Daily Mail. On July 15, 2018, the same day that it was posted to The Daily Mail, the photo of Hemsworth also appeared, without its copyright information as produced on The Daily Mail‘s website, on one of Hemsworth’s social media accounts. It also included a “tag” promoting the movie. On June 20, 2019, the photo again appeared on the same social media account, including a feature to encourage viewers to vote for Isn’t It Romantic at the Teen Choice Movie Awards.
The plaintiff media company, claiming it is unsure whether Hemsworth manages his own social media account, brought claims for both copyright infringement and contributory and/or vicarious copyright infringement against him, claiming he should have been aware of this use on his social media accounts, even if he did not create the allegedly infringing post. The company also brought a claim for alteration of copyright management information (CMI) because he – or someone on his team – allegedly removed the CMI, indicating that the photograph was copyrighted in both the 2018 and 2019 posts. In contrast, the plaintiff in Hadid’s case brought an additional claim only for contributory infringement, for Hadid’s posting of the allegedly infringing photograph on her social media account, but no claim for removal of CMI. See XClusive-Lee, Inc. v. Jelena Noura “Gigi” Hadid, No. 19, Civ. 520, ECF No. 1, at *6 (E.D.N.Y. Jan. 28, 2019).
This new case raises a corollary to the previous questions of whether posing for a photo could give rise to a defense of implied license or of co-authorship: that is, whether it applies to an even greater extent in cases of secondary liability. Although the Copyright Act does not specifically create a cause of action for secondary liability in copyright cases, courts recognize claims of vicarious and contributory infringement. Vicarious liability in copyright arises when a party has the right and ability to supervise the infringing activity and a direct financial interest in the infringement. See, e.g., Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1161 (2d Cir. 1971). Contributory infringement in copyright arises when someone knowingly induces, causes, or materially contributes to copyright infringement if they had knowledge, or reason to know, of the infringement. Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005). Given that both of these forms of secondary liability require additional elements – right and ability to control and financial benefit for vicarious infringement, and knowing inducement, causation, or contribution for contributory infringement – there are additional defenses that will surely be raised. Certainly, the celebrity understanding of whether they have an implied license, in exchange for the right of publicity or in exchange for their posing, may impact the knowledge requirement.
In the Hemsworth case, the plaintiff also brought a claim for removal of CMI under 17 U.S.C. §1202. Section 1202 prohibits the distribution of false copyright management information and the removal of such information without the authorization of the copyright owner. “A claim under § 1202(b) has four elements: (1) the existence of copyright management information on the infringed work; (2) removal and/or alteration of that information; (3) that the removal and/or alteration was done intentionally; and (4) that the removal was done with knowledge or reason to know that it will induce, enable, facilitate, or conceal an infringement.” Mantel v. Smash.com, Inc., No. 19-cv-6113-FPG, 2019 WL 5257571, at *2 (W.D.N.Y. Oct. 17, 2019) (citing Mango v. BuzzFeed, Inc., 356 F. Supp. 3d 368, 376-77 (S.D.N.Y. 2019)). Again, knowledge is a required element of this claim, unlike strict liability direct copyright infringement, and the celebrity understanding may again play more heavily into any defense. This claim, if successful, allows for an award of statutory damages of up to $25,000 per act, increasing the potential exposure for celebrity use if they remove or alter the CMI.
This case is in its early stages, but stay tuned, because this continues to be a lively and interesting area of the law to watch as more celebrities fall prey to different permutations of the same set of circumstances. Since we drafted our original post on Gigi Hadid’s cases, a third copyright infringement suit against Gigi has been filed and then settled, and now her younger sister Bella is the subject of her own suit. The complaint against Bella, filed on December 15, 2019, also includes a claim for “vicarious and/or contributory copyright infringement” similar to the one in the Hemsworth complaint. We expect to see more of these cases as 2020 progresses.