Bruno Mars Being Sued By Photographer for Posting Childhood Shot of Himself

Bruno Mars Being Sued By Photographer for Posting Childhood Shot of Himself

Singer Bruno Mars is facing legal action from a photographer who took an image of him as a child in 1989.

Posting on his social media channels, Mars took advantage of the ‘Way Back Wednesday’ craze to share a photo of himself as a young Elvis impersonator, aged 4. Mars was famously the world’s youngest ever Elvis impersonator as a child, and to the very day, still cites Presley as his inspiration behind becoming involved in music. But now, the 32-year-old musician is facing a legal battle, as the photographer behind the image, Catherine McGann, is filing a suit on the grounds she owns the copyright. The photo was posted to Mars’ Facebook, Twitter, and Instagram, with the latter acquiring over 1.2 million likes alone.

https://www.instagram.com/p/BVndZnShHTL/?hl=en&taken-by=brunomars

McGann has apparently filed the suit against both Mars himself and his record label, Warner Music, for damages and any profits they have seemingly made from the photo’s usage. McGann claims she wasn’t contacted regarding permissions to post the photo before it was used. In the age of historical lawsuits, one has to wonder whether McGann has ended up herself profiting from selling this image on the back of Mars’ fame. Who is in the wrong here? Does Mars have a right to post an image of himself?

Lead photo by Matthias Zomer, used under Creative Commons.

[via Daily Mail]

Log in or register to post comments

52 Comments

Kirk Darling's picture

Interesting question.

First, I'll bet the copyright was not registered, so I'll be interested in seeing how far that goes in court.

I'd be interested in knowing whether McGann has a model release from Mars' parents to use the photograph herself.

And, of course, the photographer is definitely trying to capitalize on Mars' deep pockets.

Photo copyright does not need to be registered to have protection.

No, they do not need to be registered to have protection against reasonable usage fees, but, in America, registration is required for claiming damages above reasonable usage fees.

She wants to claim for profits earned by Mars and his label. That requires registration. Also, claims for damages need to show either malice or punitive action. Had she sent a cease & desist letter, or issued a takedown request, and Mars did not comply, she may have a case for other damages outside of reasonable licensing fees.

As it stands, the article does not give us enough information to reach a reasonable conclusion.

A photographer has three months to register after the first publication. http://www.photoattorney.com/2008/07/just-to-be-clear-registering-your.html

Yes and no. The wording is…

~~~~~~~~~~~~~
No award of statutory damages or of attorney's fees, ….shall be made for -

…any infringement of copyright commenced AFTER first publication of the work AND BEFORE the effective date of its registration [UNLESS such registration is made within three months after the first publication]….
~~~~~~~~~~~~

Basically, if the infringement happened after first publication but before it was registered, their is no statutory damages. An exception occurs when the registration happens after the infringement but within 3 months of the first publication date.

We know in this case that first publication occurred years ago, but as long as the registration happened before the infringement, she can still claim statutory damages IF their was wilful infringement. She could have proved wilful infringement by sending a C&D letter, and it was ignored. Without that, it is hard to prove “wilful.”

In any case, she can still claim reasonable usage fees, probably the going Getty's rate.

And a Model Release won't apply on this as McGann is not the one who published the photo. All she has to do is prove that she took the photo and then it's a straightforward case from there. Mars has to get permission from the photographer to copy the image.

Kirk Darling's picture

The model release will matter with regard to whether McGann could profit herself, and that will matter in the contention of losses to the photographer.

But if the photograph was not registered, it's not going to court anyway.

Kirk Darling's picture

Yes, in order to get statutory damages for copyright infringement in the US, this work needed to have been registered back in the 80s--which is why I posed my first question of whether it was. If not, there is still the possibility of recovery of actual damages, but if the photographer had no model release, the possibility of profit is severely reduced and, thus, provable damages severely reduced, which is why I posed my second question.

Kirk Darling, you are wrong in at least three different ways in this thread.

First, you are wrong in betting that the copyright was not registered. The lawsuit (http://www.ipwatchdog.com/wp-content/uploads/2017/11/Bruno-Mars-complain...) actually provides the registration number, and when I looked it up on the US Copyright Office website, I found that the photographer registered a collection of Bruno Mars photos in 2011, including the photo under discussion here.

Second, you are wrong in arguing that she needed to register the copyright back in the 1980s. First, the image was taken in 1990. Second, as long as she registers the copyright BEFORE the act of infringement, she can seek statutory damages. As I said, she registered the copyright in 2011, and the infringement took place in 2017.

Connected with this, the issue of registration is actually moot in this case, because if you read the lawsuit, you will see that she is not seeking statutory damages. She is looking for "actual damages and Defendant’s profits, gains or advantages of any kind attributable to Defendant’s infringement of Plaintiff’s Photograph." And you can go after actual damages even if the image is not registered.

Third, you are wrong about whether a model release is required for McGann to profit from the photo. She can sell it for editorial or journalistic purposes. The model release requirement only affects her ability to profit by selling it for use to promote a specific product or service or organization. The commercial requirements for a model release are actually quite narrow.

Another point that is going to work in her favor is that the suit alleges that "at all times material hereto, Warner has operated the Mars Websites with Mars." That is, the suit claims that this isn't simply some guy's private Instagram account, but is effectively a commercial enterprise operated my Mars and by his record label with the explicit intent of promoting Bruno Mars commercially and artistically. I would be very surprised if Bruno Mars spends much time running his own Instagram account, and if this suit finds out that Mars' Instagram site was usually updated by Warner Music employees, that's going to look pretty bad for the defendants in this case.

The lawsuit calls for a jury trial, but I will admit right here and now that I will be absolutely amazed if it ever gets to court. My money, right now, is on Mars and Warner reaching some sort of settlement with the photographer. I hope I'm wrong, because this would be quite an interesting case to follow. If it does go to court, I am almost certain that the plaintiff will prevail, although I couldn't even guess at what sort of financial settlement she would get.

Kirk Darling's picture

There is some dependence on when the work was first published. Had it remained unpublished in the years between the time it was taken and when it was copyrighted? Apparently not, if Mars had a copy.

"As a general rule, works published before March 1, 1989, must be published with a valid copyright
notice"

"A copyright owner may be entitled to claim statutory damages and attorneys’ fees in an
infringement lawsuit if the work was registered before the infringement began or within three
months after the first publication of that work."

So I remain interested in seeing what really happens. I don't think we have all the information at the moment.

With regard to the model release, I said that the photographer's use is limited without a model release, and you merely confirmed that fact. Not being able to use an image for commercial purposes is not at all a "narrow" restriction--that's where the big money is.

Firstly, your reference to the March 1, 1989 date means that there is about a 1 in 6 chance that the image was taken after this date. We know that it was taken in 1989, but we do not know the precise date. Simple probability dictates a 5 in 6 chance that it was taken later than March 1. Which would also indicate that it was published later than March 1, 1989.

Second, we don't know how, or even when, Mars got his copy. Simply handing Bruno Mars or his family a copy of the photograph is NOT, under US copyright law, considered a publication of the work. Publication, under Title 17, is defined as:

"the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."

Title 17 also says that:

"To perform or display a work “publicly” means...to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."
https://www.copyright.gov/title17/92chap1.html

The US Copyright Office, on its definitions page, also says this about publication:

"Generally, publication occurs on the date on which copies of the work are first made available to the public."
https://www.copyright.gov/help/faq-definitions.html

All of this strongly suggests that handing someone a single copy of an image in which they are the subject does not, under Title 17 definitions, constitute publication. If you have evidence to the contrary, I'd be happy to look at it.

Regarding your point about registration, the lawsuit filed by McCann makes very clear that registration occurred before infringement. She registered the image, along with a selection of other Bruno Mars pictures, in 2011. If you want to look it up yourself, go to the US Copyright Office website and do a registration search using McCann's name. I did it, and I found the record of registration. The infringement for which she has brought the lawsuit occurred in 2017. Therefore, registration occurred well before the infringement, which allows her to claim statutory damages and attorneys' fees, in she wants to pursue them.

Finally, when I said "narrow" regarding commercial use of images, I meant narrow in a legal sense. The fact that you need a model release to use a person's likeness to promote a product or a service or an organization does NOT mean that you need a model release to sell an image. If I take a picture of you sitting on a train drinking a soda, I can't sell it for use in a cola advertisement, or for use in a public transport publicity poster, but I can sell it for use in a newspaper article about public transport, or a magazine article about the health effects of soda, or a variety of other editorial or journalistic uses, as long as none of those uses state or imply that you, as the photo's subject, are endorsing a particular commercial product or enterprise. Such uses might not be as lucrative as selling for advertising purposes, but you can still sell photos of people for a range of uses even if you don't have a model release.

As a photographer, I feel that this lawsuit is frivolous and idiotic. I wholeheartedly agree in protecting your copyright as an artist. But when the protection of your copyright entails not allowing a person to post a childhood photo of themself, captured before the internet was in use by the majority of the population, then you are only interested in a money grab. If this photographer hadn't registered copyright for this image back in 1989, then what do they really expect to gain? Also, Bruno Mars didn't post the image to make money or market himself, it was meant as a fun way to show where he came from. This lawsuit should get thrown out of court.

Kirk Darling's picture

I agree. Being in the retail business of portraits, the issue of clients posting their images to social media has essentially been discussed and done. The real fact is that I can explain it, I can go through the motions of providing some kind of permission, but I'd have to be insane to take a portrait client to court for posting an image in social media. I would never survive the social media shizzle-storm.

The lawsuit says that Bruno Mars' social media accounts are co-operated by Mars and by his music label, Warner Music. In fact, I wouldn't be at all surprised if many of his social media posts are actually created by interns at the music company. They're not just some guy's personal account; they're being used explicitly to help promote his multi-million-dollar brand and create profit for him and for the company.

I think it's funny that all of the people complaining about the photographer here are conveniently ignoring the fact that Mars and Warner Music could have easily avoided all of this by licensing the image for reproduction. It probably wouldn't have cost them more than $500 or $1000.

I wonder if all the people criticizing the photographer expect Bruno Mars to give his music away for free? Warner Music, and other media companies, have been doggedly pursuing file-sharers and other copyright violators in the courts for years. If those companies and their multi-millionaire artists think that intellectual property is valid and worth defending, then why don't they respect intellectual property when it belongs to someone else?

Logan Sorenson's picture

"Does Mars have a right to post an image of himself?"

1. Is it a commercial/artist account and used so to promote the artist and the brand? ... Yes
2. Did Mars pay the artist for the use of this image? ... No
3. Is there measurable value linked to the usage of this image on a social media platform? ... Absolutely.

I get what the case is... But Mars was in the wrong... You cannot use images that you don't own if you are gaining from it. It is not right.

Spy Black's picture

As someone else said here, unless she can prove copyright before the incident, and show model release papers from the parents, I suspect this will favor Mars.

Eric Mazzone's picture

Copyright is immediate upon the creation of the image, registration is NOT required to have protections, and a model release is NOT needed to protect ones copyrights.

Fuck, you people REALLY need learn about copyrights instead of making your own shit up.

user-156929's picture

It's difficult to take someone seriously when they use such language for absolutely no reason.

user-156929's picture

I didn't say it did. Read what I wrote. :-) Do you know how long I've waited to throw that back at you!? :-)

user-156929's picture

My comment had nothing to do with what he said and everything to do with him as a person. Whether or not that's relevant (I'm pretty sure what your position will be) is a different matter. Honestly, even though you're right more often than not, it's difficult for people to take you seriously sometimes because of your approach. As you said, it doesn't take anything away from your points but if people don't take you, and as a result, your points, seriously, you may as well write them on a piece of paper and throw them away. :-/

On numerous occasions, you've said you don't care if anyone agrees with you. That's fine but then, commenting on this, or any, site appears illogical. I'm sure, though, it makes sense to you and that's all that matters. :-)

Whether or not my focus is in the right place is a matter of perspective. The fox and the mouse focus, correctly, on different things. I could question your focus with as much conviction but be in no better position to do so than you, to question mine. ;-)

P.S. Did you type that on a phone or something? I can't imagine you misspelled "throw" so I'm guessing your smart device isn't very smart.

user-156929's picture

I can write whatever I like wherever I like. That's related to the article because it's about the photographer's rights. I'm demonstrating my rights. :-)

I didn't say you should care. My original comment, and all subsequent comments, has to do with presentation, not substance. You responded to the new topic, introduced by me. Something you've done (introduce topics you think are related) on multiple occasions.

I'm not questioning your focus. You questioned mine. One which you are no more able to question than I, yours. Again, my comments...my focus.

The P.S. was just out of curiosity. I have issues with my "stupid" phone deciding what I really meant to write. Again, you don't get to decide what is relevant to me. Feel free to ignore anything, not relevant to you. :-)

user-156929's picture

I didn't address his arguments at all. That is a fact. Not replying to an argument doesn't always indicate dismissal. I chose not to address his argument because he was, in fact, correct. I only addressed his language because being right or wrong in such matters is totally irrelevant. It means NOTHING. How you interact with people means far more than you know. That is an objective statement which I will not debate. Any further comments on your part will not be replied to. In this case, it will have indicated dismissal.

Eric Mazzone's picture

Kiss my combat veteran ass. And when you can speak more than three languages, THEN and only THEN shall you be allowed to tell me how I can speak.

user-156929's picture

First, I didn't say you couldn't talk like a 15-year old boy. I merely stated you would be treated accordingly. Even so, if you were standing in front of me, you'd be no more able to allow or disallow anything I chose to do. Second, I only speak two languages but far more eloquently than you can manage in English, apparently. Finally, thank you for your service. It's just too bad you choose to denigrate other veterans, by association, with your poor behavior.

Spy Black's picture

I can deal with the attitude, it doesn't really faze me. If my assumption based on others comments is wrong, then it's wrong. However in the end I think it will just come down to who has the better lawyers.

user-156929's picture

I'll be very surprised if it goes to court. Judges have ways to convince litigants to settle. I know! :-/

Anonymous's picture

Hey man, watch your fucking language!

Exactly. Photographers must protect copyright just like company must protect their TMs. You can be the artist and record company would be quick to send a c & d letter if someone was using music without right.

More comments