Introduction
Recently, Grammy award-winning British singer, Dua Lipa fell into some legal trouble. She was sued by Integral Images over posting a picture of herself that was photographed by them. The company has demanded damages worth a whopping $150,000 along with legal costs and an order that would restrain the singer from committing the alleged infringement in the future. This has created a sense of confusion amongst the general public. Can someone be sued for posting their picture, let alone one that was taken without their consent?
The answer to this would be a clear yes. Dua Lipa is not the first celebrity to be a victim of the paparazzi. Khloe Kardashian, Ariana Grande, Justin Bieber, and many more have been subjected to being accused of infringement in the past. But how could they be sued for posting their own images?
As per Indian Copyright Law, a photograph is a recognized work of art under artistic work and is protected under Section 14 of the Act. The act further defines the author of the work as the first owner to the work, who owns all the exclusive rights to the work. This clearly illustrates that as per the law, the owner of an image is the photographer. The subject matter in it therefore cannot have any rights to use it in any manner without the owner’s permission. The US laws have similar provisions, as does most of the world under the Berne Convention.
But isn’t it unfair that a person has no right to the image of themselves? Shouldn’t there be an exception in such cases?
Fair Use Exceptions
Even though both the American as well as Indian legal systems give ownership of a ‘papped’ image to the photographer, both the legal system grant an exception – that of fair use. This exception allows for an area of uncertainty. As per Section 52 of the Indian Copyright Act certain usages are not deemed as copyright infringements. The provisions in this section are varied and extensive, and one of them is the exception of fair use for the purpose of private or personal use. This is a provision that may protect the rights of photography subjects.
However, for using the same, one needs to understand what the meaning and scope of ‘private use’ is. As per Garware Plastics And Polyester vs Telelink And Ors, the Indian courts have looked into the degree of public availability of a copyrighted work to decide whether a given communication is private or not. For example, when we consider a celebrity posting an image on their public social media handle, the thousands of fans viewing their image makes the post public act, and takes it out of the realm of private/personal use.
When we look at US laws, the scope of fair dealing is more expansive, if subjective. It states that any action would be considered fair as per four criteria- the purpose behind the use, nature of work, totality in which it is used, and finally, financial value. This case-by-case basis means that there is potential for continuous re-evaluation of the existing boundaries.
An interesting case here is that of Xclusive Lee v. Gigi Hadid. American model Gigi Hadid, when facing charges unauthorized use of her image, pleaded in the court with some interesting arguments. Her attorney stated that she had shared an image that was taken of her for not a professional purpose, rather a personal use. She then stated that since the image was taken when she was out and about, not in a studio, it was a situational work, not an artistic work. She further stated that she had also contributed to the creative elements of the work. She concluded by stating that the image she used was a cropped portion of the original, highlighting what she wanted to emphasize, and not on the work as a whole. These arguments may have resulted in the Court siding with Hadid, but the case was dismissed due to technical errors by the plaintiff.
The Right to Privacy
To further complicate matters, the Right to Privacy of the celebrities interacts with the actions of the photographers. Though the right to privacy has not been codified, Courts have time and again recognized them.
Potentially, what this means is that while a photographer might take an image of a celebrity and own it, he many not be able to post it publicly without the permission of the celebrity. To add a third dimension, the photographer’s right to livelihood would be affected in such cases, further muddying the waters. As of now, there have been no verdicts on this tangled web of various rights, and chances are the questions are simultaneously too thorny and too small-scale to ever be discussed in constitutional courts. After all, celebrities are dependent on publicity, which again puts them in debt with the photographers. From a practical perspective, it’s a balancing act that neither party would likely not prefer to upset.
Since there are no codified laws regarding the paparazzi, it is difficult to deal with the institution as a whole. There is no balance between the Right to Ownership and the Right to Privacy which has been described. The crux of the matter, that a person could be photographed without their consent and yet not have the right to even use their image is baffling, from a common sense perspective. Since international standards want to encourage authors by protecting their rights, they have indirectly created a huge blow to the right to one’s personality at large.
If the laws remain lacking, the paparazzi would go ahead with their rise in ‘copyright trolling’ and hamper the rights of several celebrities as a way of earning additional income. There is therefore a major requirement of international laws that could help create the right balance between promoting artistic freedom and protecting the interests of the celebrities. And example of this would be laws allowing for celebrities to use their pictures, except in specific circumstances, or additional, explicit exemptions in fair use clauses.
Author: Maitreyi Shishir, Legal Intern at PA Legal.
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