Famous figures including the Kardashian sisters and model Gigi Hadid have become the target of lawsuits by paparazzi agencies seeking licence fees for the use of paparazzi images on social media.

These agencies have taken issue with the posting of photographs, taken by their photographers, by the subjects of these photographs themselves.  For example, Gigi Hadid has been sued for posting a number of photographs of herself, taken in public settings such as press events or runway shows, on Instagram without acknowledging the photographer or seeking their permission to post.

The agencies claim that any use of these photographs without their permission is unlawful and celebrities should be required to seek a licence in order to do so. 

Sound bizarre? Perhaps, but the law says otherwise. 

Copyright protects photographers, not subjects

As a general rule the first owner of copyright in a creative work is the author, being the person who expended 'skill and labour' to produce it . For a photograph, this usually means the person who held the camera and pressed the button. The subject of a photograph does not, in most cases, have a claim to copyright ownership and cannot control the manner of its use.

This means that a paparazzi photograph of Kim Kardashian is in fact 'owned' by the paparazzo and Kim can't post it on her social media without a licence to do so. If she does, that paparazzo may have grounds to sue her for copyright infringement.

Under New Zealand copyright law, a paparazzo could recover damages representative of Kim's profits from that unlicensed use (which, given the power of celebrities' social media platforms, could be significant) or their own loss of licensing revenue.

Defences are limited

Celebrities and other well known people may be able to rely on other legal rights to defend a copyright claim. The US courts have recognised a limited 'right to publicity' (also known as 'personality rights') which protects a person's ability to control the commercial use of their name, image or likeness. 

A right to publicity has not been recognised in New Zealand, and privacy laws will only provide protection from use of a person's image if a photo was taken in circumstances where the person had a reasonable expectation of privacy. Photos taken at public events are unlikely to attract privacy.

Is joint authorship the answer?

It is possible that copyright law could develop in the future to embrace a more nuanced view of authorship and ownership. 

The concept of joint authorship says that the person who holds the camera is not necessarily the only author, and may not be an author at all. Where two people make substantial contributions to the final expression of a work, they may be deemed 'joint authors' and have shared ownership of copyright. This could apply in the case of, for example, a director and a cinematographer of a film.

There is a potential argument that the subject of a photograph could claim joint authorship if they made creative contributions to the photograph - through posing, directing the camera to their 'good side', manipulating lighting, and so on. 

This argument has been given some consideration in the case of revenge porn where the offending photos were not taken by the victims themselves, and it will be interesting to see if it is tested in the future.

In the meantime, these celebrity lawsuits are unlikely to result in anything except settlements in favour of the paparazzi agencies, which is likely the result they are wanting (and may well be a new revenue-generating strategy). 

For us non-celebrities, this issue remains a useful reminder that we don't necessarily have the legal ability to control how our image is used, and in an era of social media and increasing erosion of privacy this is an important lesson to learn.