The Practical Problems of Image Rights

By Dr Angela Adrian

First, actress, Katherine Heigl sued New York City-based drugstore chain Duane Reade for $6 million for tweeting a paparazzi image of her carrying two Duane Reade shopping bags, along with the following text: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” She alleges Duane Reade “misused and misappropriated [the] photograph for its own commercial advertising, distributing the photo with Duane Reade’s own promotion slogans on its Twitter and Facebook accounts, all without Ms. Heigl’s knowledge or approval.”

Second, model, Sofia Richie has been sued by Backgrid celebrity photo agency for posting pictures of herself on Instagram. Backgrid is claiming copyright infringement on several of the images which Ms. Richie shared with her 3.2 million followers without getting permission or paying.

Third, alleged artist and thief, Richard Prince reminded us that what you post is public. It can be shared for anyone to see and, apparently, use. As a part of the Frieze Art Fair in New York, Prince displayed giant screenshots of other people’s Instagram photos without warning or permission. He then sold these prints for $900,000 apiece.

Each of these scenarios has played out in the real world. How much control do you have over your image? What can you post on Instagram or Facebook? Do you own the copyright in the picture? Do you have any control over someone else using a picture of you? Is this a matter of privacy or publicity? Or is it a matter for intellectual property rights (i.e., publicity rights or image rights)? All three scenarios could play out differently depending on the argument made. Likewise, all three could be usefully decided by the Guernsey Image Rights Ordinance.

This law does not rely on issues of privacy, but rather on the question of unauthorized economic benefit derived from the use of the image by others. A Registered Personality becomes more than a personal right; it is a property right. Registered personalities and their associated images have actual (or potential) value.

In the first scenario, Ms. Heigl did not take the photo in question. She did not own the copyright in said photo. Should she have any say in how it is used? Can she win a lawsuit of the unauthorized tweet of her face? Perhaps. However, she would need to make a privacy claim. Some argue that by living in the public eye you forfeit your right to privacy. However, celebrities are not public servants, nor should their lives be a matter of public concern for all to exploit. Many who choose to live in the public eye curate their images rigorously to promote their own brand. They do not lend out their name and likeness for free. They want to be paid for promoting your brand alongside their brand.

This brings us to the second scenario. Ms. Richie had professional photos taken of her for a specific commercial use. She was paid for said use. She likely signed a contract which allowed the agency sole use of the photos for a particular campaign. Had she registered her personality, there would have been a clause in that contract which would have acknowledged that her rights in this particular situation had been assigned to Backgrid. As such, she would have no right to use these photos privately on her Instagram account.

Finally, what sorts of protection do non-celebrities have who live in the public forum of Instagram? They definitely have copyright protection in selfies. Copyright law allows every individual the right to determine the extent and manner in which their thoughts might be communicated. This right exists no matter what the method of expression is, the nature or value of those thoughts, or the quality of expression. In each case, an individual is entitled to decide whether what was inherently their own should be given to the public. They definitely have a right to privacy. Privacy and publicity rights protect the interests of the individual who may be the subject of the work or intellectual creation. Privacy laws protect the individual from invasion by the over-intrusive press, by photographers or by the use of modern devices for recording and reproduction.

All of the scenarios transpired because two or more people were involved in the work (e.g., photographer and subject). Competing rights are challenged. The courts must then step in and perform a balancing act to determine which rights take precedent in which scenarios. An excellent example of this occurred in Weller v Associated Newspapers [2014] EWHC 1163 (QB). Although the case was decided along the lines of the European Convention on Human Rights – balancing Article 8 (right to privacy) against Article 10 (freedom of the press), the same principles could be used in the United States.

The Guernsey image right can capture these rights in one cause of action in a statutory manner. Image rights have been designated as property rights and not just personal rights. As such, a somewhat different balancing analysis can be used – fair use v free speech instead of privacy v free speech. The individual’s right to determine how they present themselves to the world, or not, is “balanced” against the public’s need for news regarding that individual.

There is currently no other law that empowers the subject of a photograph so effectively. Registered personalities hold rights over their image that can trump the copyright held by opportunistic photographers.

Icondia is a firm specializing in providing advice and registration services in respect of registered image rights. Click here for more details.