Amanda Gonzalez Burton is a J.D. candidate, 2021 at NYU School of Law.

It’s a tale as old as time. Girl dates boy. Boy gets photographed by a paparazzo while walking down the streets of New York City. Girl posts the photograph of boy to her Instagram story. Girl’s 49.8 million followers, including its original author, view the photograph. Girl gets sued for copyright infringement.

Gigi Hadid, and other celebrities, are being sued again and again for the unauthorized use of paparazzi photos in violation of the Copyright Act, 17 U.S.C. §§ 101.

But is this really fair?

On the one hand, few people will empathize with a 24-year-old international supermodel who pulled in $9.5 million last year from brands like Fendi, Versace, and Prada, just for existing in her current physical form. Ivan Bart, president at IMG Models, whose agency represents Hadid, told Forbes, “Your social media page is your magazine of your life, so how you represent yourself matters.” Thus, Hadid must internalize the cost of her fame. Her Instagram posts serve a commercial purpose and she should budget for this paparazzi expense for as long as her fame has value.

On the other hand, can we just let the girl live a little? Take this photograph of her former boyfriend, for example:

image via complaint

Hadid adds stickers, text, and animation to decorate the post. She frames the photo with the words “muze” (as in “muse”) and “my manz” (as in “my man”). This post is consistent with American 20-something culture and the impulse to express via Instagram – from the coordinated color scheme and the salivating lips “sticker,” to the animated cartoon girl with bulging heart-eyes in the corner. Not to mention the overuse of “z” for absolutely no reason. This is Instagram artwork, and Hadid is a creative. The word muse, at least in some contexts, literally means a person or personified force who is the source of inspiration for a creative artist. And what is the central purpose of copyright law if not to encourage creative expression?

So what’s the problem? In Hadid’s case, part of the problem is that Zayn Malik actually was her man[z] and her audience is far-reaching. My friends reproduce and publicly display copyrighted photo without authorization (or crediting the author) on a daily basis, and yet none of them would be legally pursued. Robert O’Neil, the owner of the photo above, is seeking $150,000 in statutory damages from Hadid.

One wonders if there were legs to Odell Beckham’s claim against Splash News and Picture Agency. In that lawsuit, Beckham alleged Splash was attempting to “extort” him into paying $40,000 after he posted a photo of himself on his Instagram account. Ultimately, they settled out of court.

The other problem is that Hadid used someone else’s photo in her mu[z]ey story post, without permission. And even if this particular Instagram post passes the four-prong Fair Use test, the majority of photos in paparazzo v. celebrity actions likely do not. In this context, is copyright law protecting the progress of science and useful arts or paparazzi business models? Consider that some cameras take 14 photos per second. Who has the incentive to create and innovate based on the protections copyright law gives to paparazzi photos? Or perhaps paparazzi (and our cultural obsession with celebrities) are what gave rise to the innovation that now makes it possible for a photographer to “create” 840 photos per minute on any given day.

The paparazzi may be the only people who garner less empathy than the 5’10”, 2016 International Model of the Year from Malibu, California, who has appeared on Vogue magazine covers 35 times. The paparazzi likely don’t care about attributing credit to the original author of the photo. Last year, Hadid found a photo of herself on Twitter which had already been paid for and distributed by press-outlets. She later shared the photo on her Instagram. The paparazzo who took the photo pursued Hadid in a legal action. Hadid states that she would have been “happy to tag and give credit.”

Unlike other areas of copyright law where shaming the wrongdoer is effective, there are not self-correcting mechanisms built in here. A paparazzo does not want to “shame” wrongdoers into not violating copyright. They want the opposite: to tempt wrongdoers into violating in order to get paid.

Is the 43-year-old Copyright Act the Myspace of social media in the age of Facebook?

Leaving the legal question of right of publicity out of the equation, are paparazzi photos worthy of the same copyright protection as, for example, photojournalist Alfred Eisenstaedt’s iconic V-J Day in Times Square photo? Or are there different types of photos that are more like basic building blocks of expression than they are creative works? Just as ordinary dance movements can’t be copyrighted because it would stifle the creation of new choreography, perhaps ordinary paparazzi snaps can’t be copyrighted because it chills social content creation in this photo-centric age of expression.

What would happen if copyright law changed to give less protection for paparazzi photos? What kind of activity would this burden? Paparazzi would have to eliminate their statutory damages/settlements line item from their income statement, but there would still be incentives to stake out celebrities in hopes of capturing a money shot sellable to news outlets. Perhaps fewer people would pursue a career in celebrity stalking if they knew sharing those photos on social media is Fair Use.

The unauthorized use of paparazzi photos on social media is not permitted under current copyright law, but the ways photos are taken and shared as a means of social expression is dramatically different today than in 1976 when the Copyright Act was written. It might be time to think about the outdated aspects of copyright law.

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