Sunday, July 07, 2019

The Model and the Paparazzo

I once took a close up photograph of  Fabio at the height of his cover model fame. I never used it or digitized it,  but I thought about it, because, as the photographer, I owned the copyright, right? But, it did not seem like good manners.

In a world where good manners are not a priority, and anyone with a smart phone could be a paparazzo, and anyone else (and their copyrighted tattoo) could be the subject of a snap-happy person's potentially exploited photograph, and there is a strong possibility that someone else's copyright protected work of artistic property vandalism could be in the shot also... copyright law should be clarified.

Although "copyright infringement" is a bit of a dog whistle for this author, and I generally side with the victim of copyright infringement, as copyright lawyers pile on to the most recent legal fight between a model and a street photographer, my contrarian impulses are aroused.

Examples: Legal bloggers Amy Ralph Mudge, Randall M. Shaheen, Alan L. Friel and Linda A. Goldstein from Baker & Hostetler LLP return withering legal fire with considerable wit and snark under their June 19th headline "Gigi Hadid “Obliterates” Copyrights With Fair-Use Bazooka" (Scroll down to the June 19th entry).

Another example of words to the wise regarding fair dealing between celebrities and paparazzi (and those who might be tempted to repost or retweet), posted for Australian digestion comes from legal bloggers Mark Metzeling and Nicola Stewart of the law firm Macpherson Kelley

Original article is:

I almost sympathize with the model.  Perhaps she is spoiling for a date with the Supreme Court (SCOTUS). If not, it seems to me there are some simple steps that she could have taken to make her use of various paparazzi photographs of herself "fair use". Using copyrighted works for reportage, review or commentary, or parody, or transformatively, or in an educational way is fair use... or so we are told.

Perhaps, claiming joint copyright in the photograph by virtue of having smiled and struck a momentary pose is not the best approach because if one admits to cooperating, that cooperation voids the possibility of complaining about an invasion of privacy or a violation of a right to publicity.

The Digital Media Law Project (hosted by the Berkman Center for Internet and Sociery) should be must-reading for anyone involved in writing, blogging, or social media posting.

It really is very comprehensive, well written, and illustrated (in the prose sense) with entertaining examples of what to do and what not to do.

A common root of the copyright infringement disputes may be the use of Flickr or similar sites.  Be aware that, just because an image can be viewed on a site, and that the technology exists for anyone to download that image... does not mean that the image is free for anyone at all to exploit, copy, publish and distribute.

Legal blogger Michael L. Nepple, writing for Thompson Coburn LLP's Broadcast Law Blog offers an interesting example of what not to do with a photograph from Flickr, and why the fine print should be read carefully.

Flickr has a page explaining the different types of licenses. Not every image is covered by the same rules for reuse!

All the best,
Rowena Cherry 

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