![]() It means paparazzi will be emboldened to bring similar actions, knowing their claims’ settlement values have increased. Because the balance was not so far in Ratajkowski’s favor, the judge ordered that a jury should make the ultimate decision after a full trial on the merits. But a reasonable jury could find that other factors in the fair use analysis-including the nature of the copyrighted work and the fact that Ratajkowski used the entire photograph instead of a smaller portion of it-favored O’Neil. After all, Ratajkowski posted O’Neil’s photograph on a temporary, non-sponsored Instagram Story with a satirical caption added by Ratajkowski herself. Judge Torres acknowledged this was a close case for a fair use defense. In late September 2021, federal judge Analisa Torres in the Southern District of New York rejected Ratajkowski’s motion seeking judgment in her favor on the ground that her “mood forever” post on Instagram stories was fair use as a matter of law. Every post on her Instagram feed was, in some ways, a commercial and profit-driven product. O’Neil pointed out that Ratajkowski’s Instagram feed boasts 28 million followers and, even if that single post did not charge a fee, the feed itself was a commercial enterprise to advance Ratajkowski’s brand. Echoing the legal arguments advanced by her attorneys, Ratajkowski herself wrote in a 2020 New York Magazine essay: “I posted the photograph of me using the bouquet as a shield on my Instagram because I liked what it said about my relationship with the paparazzi.” O’Neil sued Ratajkowski, accusing her of violating his protected interest in the photograph. Ratajkowski saw the photograph and posted it on her Instagram Stories account with the caption “mood forever.” In late 2019, celebrity photographer Robert O’Neil photographed Ratajkowski outside a Manhattan flower shop depicting her holding a vase of flowers over her face and upper body. On November 9, she published her first book, My Body, an essay collection about her experience with fame. More recently, she earned notoriety as a critic of paparazzi culture and the commodification of women. Ratajkowski became famous after appearing in a 2013 viral music video. And, in litigation, what can be reasonably disputed is indisputably expensive to defend.Īctress, model, and entrepreneur Emily Ratajkowski is the latest celebrity to face this issue. What may seem “fair” to some may not be to others-or at least what’s fair may be disputed. Recent cases should serve as a warning to celebrities. § 107 (“the fair use of a copyrighted work. . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright”). What if the celebrity does not sell the photograph or seek to profit from it and, instead, simply posts it on social media for other reasons, such as to emphasize a particularly good or bad day or to make social commentary on overreaching paparazzi? Is that protected “fair use” under the Copyright Act? 17 U.S.C. Now, with stars connecting directly with their fans via Instagram and Twitter, have the rules changed? Celebrities, Be Warned Photographs, like other works of art, can be copyrighted by the paparazzi and, as with copyright, the owner possesses the famed “bundle of rights,” including the right to prohibit others from displaying the photograph for money.īut these laws were settled in a pre-social media world dominated by tabloids and celebrity-focused magazines. The law also is clear that, absent permission, the celebrity cannot monetize the photograph herself. Picture this: A paparazzo snaps an unauthorized photo of a celebrity and sells it to a media outlet, making a tidy profit.Īs unfair as that may sound to the celebrity, most stars are well-aware of the established law that a photograph-even an unwanted one-can be monetized by the paparazzi. ![]() What may seem “fair” to some may not be to others-or at least what’s fair may be disputed.” ![]() “Recent cases should serve as a warning to celebrities. ![]()
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