INTRODUCTION
For the law to keep pace with societal technological changes, it must be dynamic. Celebrities are now followed and photographed by paparazzi almost everywhere thanks to the explosive expansion of social media platforms and the latter business. This has sparked a discussion about the ongoing conflict between a celebrity’s right to publicity (the capacity to choose how their public image will be disseminated and controlled in the eyes of the public) and the copyrightability of paparazzi photos. Although there haven’t been many examples like this in India yet, there have been several abroad that emphasize competing rights.
Well-known singer Dua Lipa received a legal notice from a US court in July 2021 for what could have seemed like a minor mistake for a person of her stature: she posed for a paparazzi shot at an airport and posted it to Instagram. She was accused of violating the copyright of the image by Integral Images, the business that claimed ownership of the copyright. Similar incidents have also occurred in the past, usually to settle disputes without going to court. In a separate incident, Gigi Hadid was accused of uploading her own photo taken by a paparazzi infringing on someone else’s property. The District Court of Eastern New York dismissed the case on procedural grounds.
According to the Copyright Act of 1957 (hereafter “the Act”), which says that a photograph’s copyright belongs to the photographer, who is also regarded as the work’s creator under Section 2(d), it is evident that a prima facie case has been made out against the celebrity for such behaviour (iv). This gives the photographer nearly unrestricted rights, including the ability to share the photograph with the public, reproduce it in any material form or store it on any medium, distribute copies of the image, or transfer the copyright to another individual. The Act, however, has not kept up with technical developments like the emergence of social media behemoths and the concurrently expanding legal discussion on a celebrity’s publicity rights. In order to influence how a celebrity is viewed by the general public as a whole, they must be able to exert some control on how their paparazzi shot is distributed.
ARE CELEBRITIES GUILTY OF COPYRIGHT INFRINGEMENT FOR POSTING PAPARAZZI PHOTOS?
To the average person, it may seem natural to assume that a picture taken of a celebrity belongs to the celebrity. In fact, it is common for celebrities to complain about and sometimes sue the paparazzi for invading their privacy by taking photos of them. On the other side of the coin, some paparazzi are suing celebrities for copyright infringement when the subjects use the photos in which they appear without permission. The photographers argue they own the copyright to their photos and therefore no one else can use them without their consent, including the individuals depicted in the photo. The rise of social media has made this issue increasingly relevant as stars regularly post photographers’ photos on their accounts, often without asking for permission.
ARE CELEBRITIES JOINT AUTHORS OF THE PHOTOGRAPH?
Some celebrities have argued that they have rights to photographs of them because they are “joint authors.” Under copyright law, eligible contributors to otherwise protectable works may have certain rights, including the ability to publicly display the work. They claim that because they cooperated with the photographer and posed for the picture, they’ve established themselves as co-creator. However, courts generally have rejected this argument.
DOES A PHOTOGRAPHER NEED PERMISSION TO TAKE A PHOTO OF AN INDIVIDUAL?
Under the right of privacy laws, celebrities and private individuals are protected from being photographed without their permission in a location where they have a reasonable expectation of privacy. However, photographers can take photos of individuals in public places without permission. Although a photographer can photograph someone on the street, they may be limited in the use of that photo. Individuals may have a right of publicity, which allows them to control their image, name or any other likeness used for commercial purposes. For example, the photographer may not be able to use the image to promote or advertise a product or company. Merely selling the photo to someone else may not qualify as a “commercial purpose.”
A FAULT IN OUR LAWS
The right to publicity is a relatively new concept and still developing area of law in India; it is only recognized by the courts and has no statutory support. It is generally accepted that celebrities have the right to restrict how their images are used for commercial purposes. In ICC Development (International) v. Arvee Enterprises, the Delhi High Court examined the limits of publicity rights and determined that every individual possesses the right to use their name, voice, signature, and other distinctive features of their identity. The statement stating that the use of a celebrity’s persona without their explicit consent would entitle them to a claim for damages further established by the Court as a claim for a violation of publicity rights as a separate tort.
The right to publicity of a celebrity is described by the court in the well-known case of Titan Industries v. Ramkumar Jewellers as the control over the commercial exploitation of their personality, including the right to decide when, when, and how the identification shall be exploited. Similar to this, the Madras High Court prohibited the defendants in Shivaji Rao Gaikwad v. Varsha Productions from utilizing the name of the plaintiff, a well-known actor, in their film since doing so would violate the actor’s right to publicity.
A claim for publicity rights was made in each of these high-profile instances on the grounds that doing so impliedly endorsed the celebrity of the disputed good or event and would mislead the public. This limitation, however, applies to all of these cases. Because there is no authoritative precedent on the subject, the current condition of the law does not assist in resolving the question of whether a celebrity can legally upload their own paparazzi image to their social media accounts.
It is paradoxical not to grant the celebrity the same right to promote themselves as the right to publicity deals with the intrinsic right of the famous to control their own public image and its commercial use. Due to the direct and immediate nature of communication, social media has become a popular venue for celebrities to increase their marketability and exposure in the eyes of the public. As a result, some acknowledgement of the right in pursuit of the same becomes necessary.
A FAIR DEALING UNDER SECTION 52: CELEB USING PAPARAZZI’S IMAGES
The Act solely grants the creator of a copyrighted work the right to publish and distribute the work to the public, with several exceptions outlined in section 52. According to Section 52 of the Act, fair dealing with a work for personal use is protected and would not violate the copyright. Regarding the private use of the images by celebrities, the expression is understood by the court to limit the domestic or private audience to family members and not to include anything presented to the general public through a post on social media platforms, which boast millions of followers. Therefore, celebrities cannot seek refuge from any copyright violations, arising from the use of their images taken by the paparazzi.
CONCLUSION
This is an interesting and novel argument in copyright law, and would likely rewrite the tests long used in courts to determine who owns rights to a paparazzi picture. Meanwhile, celebrities may counter potential lawsuits from photographers by including the photographer’s copyright notice on the pictures they post on personal social media accounts, or by asking permission from the photographer. Moreover, if a public figure has been photographed against their will on their private property, they may be able to sue the photographer and obtain rights over the picture. From the explanation above, it is clear how the current system exacerbates the conflict between the public figure’s right to publicity and the photographer’s copyright regarding paparazzi images. Due to their adherence to the word of the law, the courts may not be able to provide a solution to this mess. While the Preamble to the Act itself states that the legislation is a complete law in itself upon the subject of copyrights, as is clear from the words “amend” and “consolidate,” which greatly restricts any space for judicial innovation, section 17 read with section 2(d)(iv) of the Act makes the situation considerably unfavourable to celebrities. Due to the restrictions set by courts on the scope of this right, a legislative change is therefore required in this situation to carefully find a balance between the two rights. For instance, the Delhi High Court ruled in DM Entertainment v. Baby Gift House and Ors. that a claim for the right to publicity is not admissible in situations where it would violate another person’s freedom of speech and expression, as might be the case with cartoons and caricatures. Similar to this, any photo taken in support of objective reporting about a newsworthy individual is exempt from such a claim, according to the ruling in Indu Jain v. Forbes Incorporated. A celebrity may be allowed to share paparazzi photos on social media, but under Section 57 of the Act, they are still required to respect the moral rights of the photographer (such as giving them credit for the photo they took). Therefore, including current legal norms would guarantee a system that benefits both paparazzi and celebrities and gives them access to their respective rights.
LAWBEES 