28th Annual Fordham IPLJ Symposium: Celebrity Paradox
Yesterday, I attended the 28th Annual Fordham Intellectual Property Law Journal Symposium. There was a session titled "Celebrity Paradox: Copyright, Social Media & Paparazzi Photography", moderated by Ron Lazebnik, Clinical Associate Professor at Fordham School of Law. The conversation was super interesting, so I thought it is worth sharing with you. The panel discussion started by noting that we "has entered a new phase of complexity" with respect to copyright with the rise of digital platforms and the attendant monetization. More specifically, the question of authorship looms large, especially for models. Models who post paparazzi photographs on their social media accounts now run the risk of infringing upon copyrighted works and being on the receiving end of infringement lawsuits because most paparazzi photographers federally register their photographs for copyright protection. Believe it or not, that is their business model.
The panel then dived into discussing the recent Emily Ratajkowski case, which I reported last December. Here's a succinct summary of the case. Emily Ratajkowski, a supermodel-turned-businesswoman, posted on her Instagram story a paparazzi photo of herself in which she hides her face with a bouquet of flowers in protest of invasion of privacy. The post was accompanied by the caption that reads "mood forever". The photograph was federally registered and Emily Ratkowski was slapped with an infringement lawsuit. The lawyer for Emily Ratajkowski made two main arguments, one of which was that the paparazzi photograph in question lacks originality, one of the requirements for copyrightability. The lawyer argued that the photographer just happens to be in the right place at the right time. All he did eventually was clicking the shutter of his camera, as opposed to staging (i.e. lighting) that's typical of photography, at least in the context of modeling. Although the threshold for originality is highly minimal, I agree fully with Nancy Wolf when she commented that the "in-the-moment" nature of paparazzi photography does not necessarily diminish its originality. She said that news photography, which captures the liveness of scenes, is also in-the-moment by its very nature but has enjoyed strong protections at law.
Another argument advanced by Emily Ratajkowski was fair use, which can serve as a defense to the alleged act of infringement. The idea was that her Instagram story has transformed the copyrighted work and turned it into a social commentary - that the private lives of models are ruined by the whole paparazzi apparatus. The panel drew a distinction between the commercial use and the non-commercial use because one of the factors in analyzing the fair use defense is the purpose and character of use. Although the fact that Emily Ratajkowski's use of the copyrighted work is non-commercial is not a complete defense in and of itself, it is one of the factors that feed into this holistic fair use analysis. At that juncture, aside from this Emily Ratajkowski case, Angie Byun, the CEO of AB World, made a perceptive observation that, in our age, the distinction between the non-commercial and the commercial is confusingly blurred because, for many models, their social media presence is, in some sense, promotional in nature. Taking a step back, the panel all agreed, however, that if you are ever going to use a copyrighted work commercially, it is imperative that you license it.
I want to conclude today's post by giving a huge shoutout to the IPLJ team who pulled out this amazing conference in these trying times. I can't even imagine how diligently they had to work for a seamless conference because this time around the conference took place on Zoom. There was zero technological hiccup along the way, which is a huge feat. If you want to stay abreast of current developments in intellectual property law, please attend the Symposium next year. You will definitely enjoy every second of it.
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