The ghost of Halloween past has come back to haunt Katy Perry in the form of a new lawsuit.
Celebrity photo agency Backgrid USA has sued the pop star for copyright infringement over an Oct. 29, 2016, Instagram post that features a photo of Perry in a Hillary Clinton Halloween costume, documents filed with the U.S. District Court in California on Tuesday show. Because Perry failed to license the Backgrid-owned photo before sharing it with her 80 million Instagram followers, Backgrid alleges, she hurt “the existing and future market for the original Photograph,” resulting in “substantial economic damage” to the agency.
“The Photograph is creative, distinctive, and valuable,” the complaint reads. “Because of the subject’s celebrity status, and the Photograph’s quality and visual appeal, BackGrid (and the photographer it represents) stood to gain additional revenue from licensing the Photograph.” Backgrid further alleges that Perry failed to license the photo even after the agency corresponded with her through her reps numerous times between July 2017 and October 2019.
Backgrid is seeking $150,000 in statutory damages or actual damages; an accounting of all profits and other benefits derived by Perry from the photo; a declaration to permanently enjoin Perry from further exploitation of the image; and the impoundment of all copies of the photo used in the alleged copyright violation.
“Backgrid is an entertainment news agency that works closely with celebrities. As such, it is never Backgrid’s objective to litigate against celebrities,” said Backgrid attorney Joanna Ardalan of One LLP in a statement to Billboard. “Unfortunately, in the case of Ms. Perry, Backgrid reached out to her representatives in good faith and on a number of occasions to resolve this copyright infringement matter. In spite of Backgrid’s efforts, the photo at issue in the litigation has not been taken down. It remains live to this very day.”
A representative for Perry did not respond to Billboard’s request for comment by the time of publishing.
Backgrid backs up its infringement claim by noting that Perry’s use of the photo is commercial in nature, given that she uses her Instagram account to promote “business interests, products and ventures,” to “maintain and increase her visibility and desirability as an endorser, actress, model, and entertainment personality” and “promote her persona and celebrity status." Commercial uses of copyrighted content are more likely to be taken seriously by the courts in infringement cases.
There is precedent for Backgrid's suit. In recent years, a host of celebrities including Jennifer Lopez, 50 Cent, Jessica Simpson and Khloé Kardashian have been sued for posting unlicensed paparazzi photos to their social media accounts. Just last week, Justin Bieber reached an undisclosed settlement with photographer Robert Barbera, who also sued (and settled with) Ariana Grande in a similar suit back in May.