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.
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]
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.
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.
http://www.photoattorney.com/2008/07/just-to-be-clear-registering-your.html
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.
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.
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?
"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.
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.
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.
It's difficult to take someone seriously when they use such language for absolutely no reason.
I didn't say it did. Read what I wrote. :-) Do you know how long I've waited to throw that back at you!? :-)
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.
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. :-)
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.
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.
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.
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.
I'll be very surprised if it goes to court. Judges have ways to convince litigants to settle. I know! :-/
Hey man, watch your fucking language!
http://www.photoattorney.com/2008/07/just-to-be-clear-registering-your.html
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.
Did she send a C&D letter? We don't know.
There's way too much about this case, we don't know. Since he was a child at the time, did Mars even know it was copyrighted? Did the photographer contact him or a lawyer, first? How do you prove he made a single nickel off it or, conversely, that he didn't. People are too ready to sue as a first action. All things being equal, if that was the case, and I don't know if it was, she gives a bad name to all photographers. Again, we just don't know.
The legality of it all aside, this is a pretty ridiculous lawsuit and this kind of thing is EXACTLY why people roll their eyes at us when we start talking about copyrights. If I have a family photo taken at Sears a few decades ago and decide to scan the print and share it on Twitter, should the photographer or Sears (not sure who owns the copyright in that arrangement) be able to come after me for money? I think we can all see that the only reason this is even happening in the first place is because Bruno Mars is a fairly high profile figure with deep pockets. The guy shared a freaking childhood photo of himself on social media. He didn't use it as an album cover or make a t-shirt of it to sell. Let's get real. This isn't about protecting copyright. This is about getting a payday.
For everyone mentioning that copyright is protected from the moment the shutter is pressed, that's all nice in theory, but proving that you're the one who pressed that shutter can be a different matter altogether—especially if you're talking about something that happened decades ago. That's one of the reasons it's pretty important to actually register your copyright. If this photographer hasn't done that, sure she might have the negatives, but there have been plenty of instances where people acquire the original negatives to photos they didn't take be it from auctions, estate sales, accidental finds, etc. In reality, without solid documentation like you would get from registering the copyright, it's a difficult thing to actually prove. So I guess if you're a photographer aspiring to sue a celebrity in a few decades, make sure to register that copyright...
It will be interesting to see where this goes. Frankly, I suspect it will just be settled out of court for some paltry sum because I doubt that either party really wants to deal with this nonsense—Mars less so than the photographer. He'll just throw money at the problem while the photographer will go into hiding or maybe write an sob article about persecution as the inevitable scorn and death threats start to flood in from Mars' fan base.
So maybe I'm wrong here. Clearly, if she's willing to endure what she will now have to, I guess she really did care about that copyright more than the money... because I can't imagine the type of money you would have to throw at me for having to go through what she's probably going to experience if the general behavioral pattern of rabid fans in these types of situations holds true. It probably won't be as bad as poking Beyonce or Taylor Swift, but this is going to be a hell of a lot worse than poking that dude from Queen.
IMHO it all stands on the context in which the photograph was taken. If the photograph was taken as a family shot at the time with no commercial purposes, he should be entirely free to do whatever he feels right with it including commercial promotion as if it had been shot by any member of his family. Then if it was shot as a commercial shot thus properly limited in terms of copyrights, the photographer obviously has a case and she's in her right. Of course some people would sue their own kids if it could land them a few bucks but let's not get there...
That is all well and good but your opinion does not count. He did not take the photo, He used the photo.
neither does yours for that matter or anyone else's on this website well unless the judge who will have to rule this thing finds inspiration here
True, but when there are questions about the law some things are clear. As long as it is provable that McGann took the photo, and Bruno used it without permission I don't see a lot of wiggle room there. Just negotiation of $
Listen to what you're saying... essentially "you take a professional photo of me (perhaps for free even) and then I use it to promote/sell product... for my benefit and the financial benefit of some company and you're ok with that BECAUSE you didn't expect it to be used commercially." That's just silly! In that case every company/brand should just have "non commercial" shoots done of their music (or other) artists and then turn around and use them commercially saving themselves thousands. 😏
How many years ago did the shooting take place ? If you can prove the photoshoot was intentionally taken back then with intents to use it commercially decades later you stand a point otherwise I stand on my grounds (and I feed my large family working as a pro photographer). I can tell you that if someone was to use a photograph I shot even 3 years ago as a family shot or a private shot for commercial purposes and was successful, I would feel far too ashamed to claim any right. What a terrible world we live in
That's not how it works. That's NOT how the statute is written. Sorry. You can have your humble opinion but its really doesn't count for anything if you don't have the facts to back it up.
All he has to do is credit her when posting the photo, right?
No, crediting someone else does not solves legal problems, yet there is a lot of people that thinks it's ok to "borrow" someone else image and it's "ok" just by crediting them.
If he also wrote Photo: Ivana McGavin or whatever her name is and attached the link to the original image?
It's also not ok (at least on legal side). There is no other 'legal' way other than getting it agreed with photographer to do so.
Many of you people are speaking out of your ass.
No you dont need to file copyright. No, not even to make money.
No she doesnt need a release because she wasnt making money off of it. She still holds copyright.
Absolutly is Mars'es job to know who owns the copyright. Im sure his lawyers know where his songs are used...
Its not her job to ask for propper credit. She may never wanr the photo used. It doesnt matter if it was of a child, if its good enouvh to post, its good enough to get the copyright
(If he didnt know who took it he could have said so in the post and tried to find them. Or not use it.)
All of the comments are conjecture. We don't know any of the relevant information. What we do know is...given the information provided in the article, she looks bad for her actions. The author should have done more research before asking our opinion.
"She's just looking for a payday!" So what? She has something that is now valuable, that wasn't valuable 2o years ago. He is famous and using the picture as promotion, now it's a business situation. I would have contacted him and come up with a reasonable fee (use + using without asking penalty)for using the photo. His legal team would pay the "go away money"
By making a federal copyright case out of it she will be in a spending match against Warner Bros. I doubt she can afford a drawn out case. She probably has an attorney to take the case on contingency and she will give up 1/3 to the lawyer..There will probably be a settlement for an undisclosed amount.
Indeed!
I struggle with the whole "he's using it for promotion" argument. So, in essence you are saying that a public figure/celebrity is unable to, or not permitted to post a photo just as a private citizen? People post photos of themselves as children all the time, but because he's a celebrity he's not permitted to do so without being sued? If this photo was posted to the Record Label's social media sites by Bruno Mars, then yes, that is a promotional use situation. I just think that there's too many questions left unanswered at this point.
Public figures and private figures have different rights to privacy and publicity.
Pretty much everything a celebrity puts out on a public IG or FB group is for promotion of their brand. What fan WOULDN'T want to see a cute photo of him as a tiny Elvis impersonator. I would if I was a fan.
If Bruno has a private IG or FB group open only to friends and family they there would be less of a reason for a lawsuit.
IMO she is overreaching but that is a common lawyer tactic. Ask for alot and settle for a little.