Every photographer knows that copyrights are essential to protecting their work, particularly online. You could, at some point, find yourself in a lawsuit, suing someone or a company for copyright infringement—or even getting countersued for damages. Here, we’ve gathered copyright infringement cases from the last year involving photographers—with the likes of LeBron James, Gigi Hadid and even the UK government—that have tested copyright law and photographers alike. Take notes on the lessons learned!
6 Copyright Cases You Should Be Familiar With:
In an ongoing copyright battle between photographer Lynn Goldsmith and the Andy Warhol Foundation for the Visual Arts, a U.S. appeals court overturned an earlier decision that said Warhol’s use of Goldsmith’s image of the late singer Prince was transformative enough to fall under fair use. The second circuit panel cited concern over the 2019 court decision that said Warhol’s unique style deemed the artwork transformative, and Goldsmith wins a hard-fought round in the meantime. The case is now set to go before the Supreme Court in October 2022. During the week of August 15, 2022, the Copyright Office and solicitor general urged the courts to rule that the photographer can pursue copyright infringement over the paintings. A brief from the copyright office and Solicitor General says that Warhol’s image of Goldsmith’s doesn’t fall under fair use.
We are keeping our eyes on this one and the Supreme Court ruling in the Fall of 2022.
A photographer under the paparazzi agency Xclusive-Lee captured a photo of model Gigi Hadid. She had turned and smiled at the camera, so later when she posted the shot to Instagram without seeking permission—and Xclusive-Lee moved to sue her for copyright infringement—Hadid argued that she had co-authored the image.
Co-authorship occurs when more than one party works together to create a copyrighted work. The idea that a model can be a co-author of a photographer’s work is a frightening proposition and would greatly change how photographers produce images in all contexts. But simply smiling does not merit co-authorship because it doesn’t qualify as creative contribution. One’s face and likeness are similarly not “creative,” but rather products of our nature.
It is very, very unlikely that Hadid’s defenses would have succeeded. Instead, Xclusive-Lee’s case was dismissed because the plaintiff had not properly registered the photographs with the Copyright Office, a requirement in order to file a lawsuit. Xclusive-Lee had applied for registration at the time it filed suit but had not yet received its copyright registration.
The bottom line: Always register your copyrights as soon as you can. Read more about this case here.
A writer for the online publication BuzzFeed used a photo, captured by photographer Gregory Mango for the New York Post, without his permission, and then replaced Mango’s photo credit with the name of a law firm related to the story itself.
When Mango filed suit against BuzzFeed for copyright infringement, it was grounded on two points: for the online pub using his image without permission, and for removing his copyright management information (or CMI) in violation of the Digital Millennium Copyright Act (DMCA). BuzzFeed fought Mango in court on the latter point, appealing a previous ruling and claiming that they couldn’t be held liable “because there was no evidence that it knew its conduct would lead to future, third-party infringement.”
A court disagreed, ruling that BuzzFeed was indeed liable for third-party infringement. Read what Mango was rewarded and what this means for photographers here.
Last year, Mashable won a lawsuit against photographer Stephanie Sinclair after she refused to allow the website to share her photos. Mashable published them anyway via Instagram’s embed feature, which prompted Sinclair to sue for copyright infringement. She lost the suit.
But later, a court in New York reopened that lawsuit after an identical case cropped up involving Newsweek and Instagram announced that it does not grant a sub-license to anyone who uses their “embed” feature to share a public photo. (As of Feb. 11, 2021, the case between Mashable and photographer Stephanie Sinclair has been settled. While terms of the settlement have not been made public, an attorney for Sinclair has been quoted as saying that his client was pleased with the outcome of the case. “She believes that because of this case, third party publishers generally no longer embed copyrighted photos or videos from Instagram without first obtaining permission or a license from the copyright holder.”)
Ars Technica reported that, “Professional photographers are likely to cheer the decision, since it will strengthen their hand in negotiations with publishers. But it could also significantly change the culture of the Web.” Read more about that here.
Photojournalist Steve Mitchell claimed unauthorized use when LeBron James posted a photo he captured of him dunking during a game to his social media accounts. Mitchell filed suit for $150,000, and James countersued for $1,000,000 in damages and attorney fees. The countersuit began, allegedly, after attempts to agree on compensation for Mitchell, and after James’ team found that Mitchell added the photo to his website as a way to promote his business and services. (UPDATE 2/5/21: LeBron James has agreed to a settlement in this case after being sued by photographer Stephen Mitchell. (James later countersued Mitchell for $1,000,000.) Specific terms of the settlement have not been made public, but it appears to have resulted in closing both outstanding lawsuits.)
Legal experts have offered some insights while the copyright infringement case is ongoing:
- Mitchell own his photos, and he controls the right of reproduction in publications and on social media. Interference with his copyrights are liable for infringement.
- Without a contract that stipulates to the contrary, James did not have the right to publish the photo just because it features him prominently.
- As a photojournalist with proper credentials (and according to the NBA’s own media policies), Mitchell can take photos during games for news coverage purposes.
- James has a “right of publicity” for his image in photos, and while that right varies by state (and can be limited by the First Amendment), it does protect your name, image, likeness and identity from being used for commercial purposes without your permission.
[For more, read our follow-up, “Fair Use or Copyright Infringement? Analysis of the LeBron James Social Media Lawsuit”]
During a George Floyd protest in St. Louis last summer, photojournalist William Greenblatt walked with marchers down a private street and photographed a couple, Mark and Patricia McCloskey, as they stood on their front lawn holding guns. The photo quickly went viral—the McCloskeys even repurposed it into a greeting card.
Greenblatt discovered all of this over Twitter. He billed the couple for use of the image without permission, and he sent a cease-and-desist letter. The McCloskeys responded with a suit of their own, stating that Greenblatt was trespassing when the image was taken, and they requested that the court transfer ownership of the images to them. The couple claimed that the photo contributed to their “significant national recognition and infamy” as well as “humiliation, mental anguish and severe emotional distress and death threats.”
[For more, read our follow-up, “Is it Legal to Take Photos on Private Property?”]
And in Case you Missed This One…
Atlanta-based portrait, lifestyle and wedding photographer Krys Alex captured and posted an image of a young dancer at a dance studio to the royalty-free stock photography platform Unsplash. Later, she discovered that it had gone viral after it was used in a controversial UK government ad campaign.
The ads encouraged creatives to retrain for a new career in cyber security and they were widely criticized for discouraging and devaluing artists—particularly after British politician Rishi Sunak’s suggested that those in the creative industries who are out of work due to the COVID-19 pandemic should simply retrain and find other jobs. Alex’s image had been plucked form Unsplash and cropped, and the young dancer, Desire’e, had been renamed “Fatima” for the campaign.
“If I had known this was going to be used in the way it was, I would never have agreed to it,” the photographer said. “I feel like artists should stand together and support each other. Our hard work deserves to be recognized, and we should not be encouraged to stop doing what we love.”
The problem is, royalty-free, copyright-free sites like Unsplash are not set up to favor photographers. These sites allow users access to high-quality photography for free. Unsplash’s own terms read: “All photos published on Unsplash can be downloaded and used for free. You can use them for commercial and noncommercial purposes. You do not need to ask permission from the image owner (though attribution is appreciated).”