The famous model Emily Ratajkowski has recently settled a copyright case arising from her posting a photograph of herself on her Instagram story. Ms Ratajkowski was sued in 2019 by paparazzi photographer Robert O’Neil after she posted a picture that the photographer had taken of her where she had used a bouquet of flowers to hide her face from the photographer. The photographer was only present on her story (as opposed to her main feed) for approximately an hour however Mr O’Neil brought the action anyway seeking damages of up to $150,000.00.
Mr O’Neil has a history of this type of litigation, having brought a similar case against Gigi Hadid which was the first case of this type and which opened the metaphorical floodgates. The basic premise here is founded on a misunderstanding amongst celebrities of image rights and copyright. Celebrities have shared images of themselves on their social media channels taken by other people (normally paparazzi) on the basis that as the image featured them they had the right to do so. This however misunderstands the law of copyright which does not give any rights to a subject, with the rights instead retained by the photographer.
For photographs to qualify for copyright protection they must have some form of artistic merit. This is a low threshold but is a defence that Ms Ratajkowski sought to rely on in this case. She argued that the photographer had essentially only caught a snapshot of a moment in time, he had not taken any thought or care over composition and had not directed the scene he captured in any way. On this basis, it was argued that the photograph was not artistic and so did not qualify for copyright protection.
This argument was rejected by the Court in America which noted the extremely low threshold for copyright protection. Shortly after that ruling, the matter was settled on a confidential basis though it can be assumed it involved some form of financial payment from Ms Ratajkowski to Mr O’Neil.
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