For the second time in a year, Dua Lipa is facing a lawsuit over posting a paparazzi picture of herself to her Instagram account. In a suit filed Wednesday in U.S. District Court in California, New York-based photographer Robert Barbera claims that the singer committed copyright infringement by posting pics he took of her to the platform in July 2018.
On the surface, it might seem odd that a celebrity can be sued for posting a picture of themselves on social media. But in these cases, the law is fairly clear on what rights stars have when it comes to this corner of the intellectual property world.
“Generally, under U.S. copyright law, the person who ‘authored’ a work is the copyright owner,” reads an explainer article posted by the business/entertainment Romano Law firm on the subject in Nov. 2021. “In this context, a photographer who takes a picture of a celebrity would be the creator of the work and would therefore own the rights to the image. Such exclusive rights reserved for authors include the sole right to use, reproduce, distribute, display, prepare derivative works, sell and license the work.”
In short: the photograph is a creative work owned by the photographer, not the subject of the picture. Anyone who wants to use the photo has to get permission from the rights holder — including the person in the image. And while celebs may own the right to their appearance under other laws, “they do not have the right to use the photo if they don’t own or license the copyright for it.”
“The misunderstanding with celebrities [is] just because they’re the subject of a photo doesn’t mean they have any ownership rights in it,” says Nancy Wolff, an attorney at Cowan, DeBaets, Abrahams & Sheppard who specializes in copyright matters. “Not everyone really understands the difference between rights of privacy and publicity and copyright…. So, in order to, for example, post a picture on Instagram, there actually has to be a fair use reason for doing it.”
Under fair use doctrine in the U.S., one of the criteria courts consider is whether the use of the copyrighted material is “transformative” — i.e. whether it adds new meaning or expression to the original. In the case of Lipa, simply posting Barbera’s photo without commenting on the image itself does not likely meet that criterion. “Hypothetically, if someone took a photo of you and you wanted to critique the photo as a photo, it could be a fair use,” says Wolff. “But if you’re just using the photo because it’s of you and you like the picture, then you’re getting a benefit from the photo.”
If celebs believe they have a right to photos of them because they are “joint authors” of the image they appear in, Romano explains that courts have “generally rejected” this argument, even if they cooperated with the picture and posed for it. Under privacy laws, celebrities and private individuals do have protection from being photographed without their permission in a place where they have a reasonable expectation of privacy, but photographers are free to take photos of them in public places without permission.
That’s why you see so many “stars: they’re just like us” snaps of celebs shopping, making out and chilling at the beach in magazines when you’re waiting in a doctor’s office.
Barbera has a history of suing celebrities, including Ariana Grande and Justin Bieber, for posting his photos to their social media accounts, but he’s not alone; cases like these have proliferated over the last few years. That’s no coincidence. “It’s a whole business model now,” says Wolff. “There’s companies that combine image recognition technology with lawyers who are willing to work on a contingency.” Couple this with a decrease in licensing income for photographers in the social media age, and the landscape is ripe for these kinds of lawsuits.
According to the latest suit against Dua, “Without permission or authorization from Plaintiff, Defendant volitionally selected, copied, stored and displayed each of Plaintiff’s copyright protected Photographs.” The photos in question, which were taken in July 2018 and attached as an exhibit to the suit, show Lipa wearing a black sweater bearing the word “HEROES” in large capital letters.
As in a similar earlier lawsuit that was later dismissed with prejudice in October 2021, Barbera claims that because the singer uses her Instagram account to advertise her music and brand and promote her business interests, she financially benefitted from posting his copyrighted photos and harmed the “potential market” for the snaps. “Paparazzi argue they make their money from selling their images to media outlets, but when celebrities post those same images, those outlets are less interested in the photos,” the Romano post explains.
Barbera also alleges that after discovering the photos on the singer’s account in June 2019 he tried to resolve the matter outside the courts but that “communication slowed and eventually stopped” after Dua was provided a draft copy of the complaint; she later removed the images from her account.
Typically, celebrities settle these types of lawsuits, says Leslie Burns, an attorney who specializes in copyright matters — and she predicts that Lipa will do the same here. Fighting the suit in court would likely be “more than she’s going to pay to settle,” she says. “That’s where you get the cost-benefit analysis. That’s what a lot of people do in these situations.”
And that’s exactly what many of the plaintiffs in these cases are betting on. “You do have some people who file these suits simply for that,” Burns adds. “They’re like, ‘Okay, they’re gonna want to pay us money instead of…spend more money on litigation.'”
Both Wolff and Burns are hopeful that the copyright small-claims court established under the CASE Act, which began accepting cases last week, will soon become a forum to deal with these types of lawsuits going forward. Known as the Copyright Claims Board (CCB), the tribunal caps damages at $30,000 per case and is billed as a cheaper and more efficient way to settle copyright disputes (parties can bring claims before the board for a small initial fee of $40).
Representatives for Lipa and Barbera did respond to multiple requests for comment from Billboard.
-Additional reporting by Chris Eggertsen