In what is becoming a familiar story, yet another celebrity is being sued for posting photos of themselves on Instagram. This time, the celebrity is actress Amy Schumer.
The suit, filed by New York City photographer Felipe Ramales, alleges that Schumer, a well known actress and comedian, posted two photos of herself taken by Ramales on her Instagram account without receiving permission or licensing them. The two images showed Schumer out with her son, Gene, in New York City in November of last year. In the images, Schumer is seen wearing a "Plus Size Brian" sweatshirt, which she sells on her website. As part of the suit, Ramales' attorney alleges that Schumer thus used the images as advertising for the apparel without obtaining permission from Ramales or giving him appropriate compensation.
Claudette LLC, Schumer's company, is also named in the suit, as the complaint alleges that the photos were also published on its website. The complaint requests a trial by jury, monetary compensation, and legal fees. It is just the latest in the seemingly never-ending saga of celebrities being sued for posting pictures of themselves on Instagram.
Lead image by Maryanne Ventrice, used under Creative Commons.
Considering the brand on the shirt was for Schumer's own company, I would think the case could be made the intent of the Instagram post was to promote sales of the shirt. What is left out was the text accompanying it; did it have a link to Schumer's store, for example, which would make the post a direct commercial appeal?
Gary- there is a legal differentiation between paid for commercial media and earned media. For example when a politician buys ads they have to file FEC reports and it is considered a campaign ad. When the same politician stages a media event or does something that the media finds interesting and they cover on their own, it is earned media. Though like a paid ad it promotes the candidate to voters the latter is not considered a campaign commercial. Clothing designers loan gowns to high profile celebrities at the Oscars. The red carpet photos function as earned media as well. It promotes the brand to consumers but it is not a commercial.
Instagram is not an online store and if Schumer did not link the image to the store on her professional website nor mention she sells the shirt in the posting with the photo, it really is earned media. If the photographer wants to claim any image of the T-shirt is a defacto commercial ad, then Schumer’s lawyer can make a counter claim that the photographer cannot photograph the shirt without a release and they find the images defamatory or dilute the brand.
Jon - In the cases you mention, there is a prior agreement between the creator and the talent/politician. The dress designer provides the gown gratis because there is value to the free publicity. In this case, there was no prior agreement between the photographer and Schumer's camp.
Instagram may not be a store in and of itself, but it is a vital traffic- and link-builder. Kylie Jenner has become a billionaire due to Instagram.
.
I'd imagine it must be frustrating going out to do normal family things when there are photographers forever following you. Every one has a right to privacy in a public space if that makes sense. Just because you have a long lens and pro camera doesn't give people the right to invade that personal space. Personally I feel if you take unsolicited pictures of people in a public place then the subject should have the right to use those pics in whatever personal capacity they wish. If the subject has signed a contract then that's a different matter. Imagine a photog made a £100k of a pic of you picking your nose. Wouldn't you rather have the right to the £100k if such a pic of you had to go out? That way irresponsible photogs would be dissuaded from harassing people. Just a thought...
The problem is that you have no right of privacy or expectation of it in a public place, especially when you're a recognizable celebrity. Public is, as the word implies, public. Anyone can photograph and see you, whether it's a stalker with a 600m lens or a dude with a 100x smartphone zoom.
In terms of the law yes. But morally? Just saying perhaps a better balance could be sought.
Morality and laws sometimes don't go together.
No one has the right to privacy in a public place. The law is very clear about this. The government collects millions of images of us walking or driving around as do millions of businesses.
Within a public area everyone has a "personal space" which if physically invaded can be threatening.
Sticking a 600mm lens on or getting in someone's way "could" be considered invading a persons personal space. There's a balance to be struck. These photographers are not there to take a photo of a public space with people in it. They are their to take a photo, an intimate unwanted photo, of a person in a public place. There's a difference. I understand the law. I also understand human nature...
Mark, "personal space" only applies to social distancing and it is very important. If no one was allowed to take any pictures of anyone in their "personal space" there would be no vacation photos in any album. Once you are out in public you are fair game in the U.S. If you don't like it I guess you should write your congress person and start a grass roots campaign. good luck.
"Every one has a right to privacy in a public space".
No one has right to privacy in a public space. You can be seen in public, you can be photographed in public.
I understand. See above however regarding the subtleties of the situation.
I hate to be the one to tell you this but your feelings are irrelevant. You don't live in America and don't understand our laws. So you opinion about our laws is meaningless.
Our laws here are the same Marty and as a photographer we have a common interest. We'd all like to see less of these conflicts, protection for photographers and individuals private personal space not being invaded. This is a human situation impacting many cultures around the world. Your "leave us alone message" is meaningless and misplaced. ;-)
Then I hope your are setting the example for the rest of the world. Don't photograph anyone without their consent but don't force your desires on everyone else. That's all I'm saying. Or better yet, join a political party, run for office in your country and work to change the laws.
“Or better yet, join a political party, run for office in your country and work to change the laws” Interestingly I have done all three. 🙂 It’s the subtleties that bother me Marty. Nothing wrong with photographing people in a public place. It’s the singling out of a particular person without their consent on a consistent basis in an effort to make money. That should be considered harassment. However we agree to disagree but that’s ok. That’s democracy. 🙂
Marty, next thing you know people like David Glove willl be saying it's illegal to drive on the right hand side of the road in US just because it's illegal to drive like that in their country.
LEGALLY and this is the focus of the issue is that you do not have a reasonable expectation of privacy in public spaces. Public figures have an even less expectation of privacy in public. It does not matter if you have an iPhone or a 600mm lens, if a person is visible from a normal pedestrian view (meaning no ladders over walls, helicopters or drones) they do not have a right to privacy.
The issue of physically jumping out at someone, blocking them or harassing them is a separate issue than pressing the shutter on a camera. All of those things are physically harassing a person whether or not they are also taking pictures.
We can debate ethics and civility regarding photographers on the street. Legally I have a right to photograph other people’s children in a public playground. However I personally choose not to do so without express permission as a parent may misinterpret the situation as a threat.
Sorry Mark, but laws in most Western democratic countries are broadly similar regarding expectations of privacy while in public. Which is to say you largely have none. And while the idea of personal space is novel regarding this, the reality is that what space you consider to be personal, and what someone else does will differ - often depending on locality and even culture.
It may be of interest, but I work in a similar field (of sorts) to papparazi in that I take photographs of people who (hopefully) are unaware of being photographed, for commercial gain. These photographs aren't 'sold' per se, but they are included in a report which the client has paid for. I am a private investigator who conducts physical surveillance.
As such, I am also governed by a code of conduct that clearly stipulates when I can photograph (or video) an individual, and when I cannot. And there are virtually no barriers as long as both myself and the subject are in public, or a private place open to the public.
I guess the question I have for you is whether your personal space is really being invaded if you don't know you are being photographed?
The fact paparazzi are exploiting the law in no way supports an inference they are not human garbage.
I never understoud french law , or american law , for photographer and people on it....for me if people are not payd to be on a photo , they should get same right like photographer,and own half of the photo , and so alow or not to use it ...
In U.S. copyright law, the moment someone presses a shutter, that person has created a "work" that is protected by copyright. The subject does not have rights to the image, except under specific circumstances. The use of that image, however, can be limited. For example, if Michael Jordan was photographed in public in a pair of Adidas, Adidas could not use that photo for commercial use.
Paparazzi are scum, absolute scum.
But she is an idiot for using the photos, don’t feed them the bait.
I agree that paps are bottom feeding scum suckers, but they wouldn't have a job if there wasn't a consumer-driven demand for their images.
What's interesting though is how paps work differently in different countries. NZ tends to be less in your face than in the US, for example. Still bottom-feeders, but less aggressive.
I was neutral on my opinion of them until I watched a documentary over here in the UK about them, and one openly admitted using fast shutter speeds to get a shot of a celeb with their eyes closed so it looked like they were drunk, which he then sold to a paper and it was on the front page the day after.. he also admitted the celeb had a coffee on their table, and not alcohol. Both him and the paper should be ashamed.
Misleading title. Should read “Amy Schumer commits obvious act of copyright infringement, gets sued.”
For everyone saying celebs can afford it and stalking for money should be okay. Watch https://youtu.be/bXJBkLv6Rew?t=39
No one is arguing that stalking isn't bad.... Your solution affects more than just stalkers. Making it illegal to profit from images of people without consent would have fewer negative consequences for normal photographers.
Some people are missing the point here...
She doesn’t own the image
She doesn’t have permission to use the image
She didn’t pay to use the image.
She stole the image.
‘I’m just using this Mercedes to promote my brand and business..’
Do you own the Mercedes..? ‘No’
Do you have the owners permission to use it..? ‘No’
Did you pay to use it..? ‘No’
Then you stole it...
It’s so easy to take a selfie love... it really is, take yourself a selfie... use it to promote yourself, no need to steal.
Door stepping paps and their morals is not the issue here.
Two further points to consider...
If Ms Shumer had been busy being a mom for a few years, had dropped off the radar and was making a comeback, you bet your bottom dime her agent would be calling and begging every pap to take her picture whilst she’s out and about, it’s part of the game, nothing more nothing less.
Second point, if an up and coming comic had ‘lifted’ any part of her routine, gags or comedic style... her lawyers would be onto him/her with cease and desist orders before the final curtain.
Wether it’s fine art or paparazzi work is work and is owned by the person who created it.... just don’t steal it.
Now enjoy the rest of your Easter chocolate...
G
The question is , why she dont own her own image if didnt get paid for it... i agree a model dont own image since she got paid for the photo... so no problem... but , if i make some photo of someone , lets say well know girl nake on beach with big teleobjectif... that model didnt get any payment, i just stole her image at least,but her itimity also.and you are saying , she dont own anything ?she dont get anything , and she can not even use photo ?
You own the photos you take. That’s how copyright works. Other people can’t copy your photos without permission and if they do, you can sue them to enforce your copyright, because that’s how copyright works. Nobody else enforces your copyright for you.
AJ L wrote, “Other people can’t copy your photos without permission…”
Per US copyright law, if third-parties are commenting or reviewing or criticizing your photographs or using it in another Fair Use affirmative defense manner, say for scholarship research, then they can use your images without a license: See 17 USC § 107.
AJ L wrote, “…if they do, you can sue them to enforce your copyright”
In the US, in order to sue for copyright infringement in federal court (i.e. have legal standing), the photograph MUST be registered with the US Copyright Office. If the photograph was “timely” registered, i.e., either BEFORE the infringement occurred OR within three-months of first-publication, the photographer has leverage to push the infringer to settle out of court (notwithstanding Fair Use exceptions).
If the infringer doesn’t settle and the matter goes to trial where the photographer prevails, the infringer is now liable for statutory damages from US$750 to US$30,000 and up to US$150,000 for willful infringement (see 17 USC § 504(c) -- Remedies for infringement: Damages and profits [Statutory Damages]) AND the photographer’s attorney fees AND legal costs (at the court’s discretion) (see 17 USC § 505 -- Remedies for infringement: Costs and attorney’s fees).
With litigation being so EXPENSIVE, most all copyright infringers will want to mitigate their financial exposure and settle out of court.
HOWEVER, without a timely registered photograph, photographers can only pursue “actual damages” (typically the actual licensing fee, and those tend to be LOW in respect to the scope of the infringement) and the disgorgement of profits (if any!). It’s unlikely the photographer can pursue infringers in federal court, as the cost to litigate (attorney fees) is so high; the amount of money damages received either through a protracted trial or out of court settlement will very likely be out-stripped by attorney fees, making it uneconomical to pursue infringers without a timely registered copyright.
Sure, you can send infringers a cease & desist + settlement demand letter against an infringed photograph that was NOT timely registered; the photographer’s attorney just won’t have the necessary LEVERAGE to get a proper financial settlement (cannot pursue enhanced statutory damages AND attorney fees).
Searching the US Copyright Office’s Public Catalog, the photographer, Felipe Ramales, has approx. 25 “group-registered” copyright claims, and some of them list photographs of Amy Schumer. However, I can’t tell if any of the photographer’s images of Amy Schumer were timely registered (probably are)! I’d have to read the lawsuit to be certain.
In the end, if there’s an infringement and photographers want to receive money damages, their images really, really need to be timely registered to pursue US-based copyright infringers.
Sadly, only a handful of US photographers timely register their copyright claims.
I did read up on this. Schumer used the photo to advertise her brand of t-shirts. A fair use defense would fail.
If the photographer has made a demand he’s probably submitted his registration already. If he has not, he can do so prior to filing a complaint in court. He needs to register within 90 days of first publication to get statutory damages in court, and considering the mention of $150k it looks likely that he did so - but if he has not he can still receive actual damages.
AJ L wrote, “I did read up on this. Schumer used the photo to advertise her brand of t-shirts. A fair use defense would fail.”
I agree.
AJ L wrote, “He needs to register within 90 days of first publication to get statutory damages in court…”
The statute specifically states that a published work must be registered within “three months,” NOT 90-days – there’s a difference! Take for example the three-calendar month range “oddity” of February (non-leap year; has 28-days) and March (31-days) and April (30-days) = 89 days! If you first-publish a work on January 31st (or any day in February) and wait till the very last day to timely register within the three-month window, that’s April 30th. If you’re counting 90-days, the last day to register would be May 1st (you’re one-day late, and now don’t qualify for statutory damages from the first-day of publication to its three-month timeframe. With other three consecutive month ranges, like June (30-days) + July (31-days) + August (31-days), you actually get 92-days to timely register.
AJ L wrote, “…but if he has not [timely registered] he can still receive actual damages.”
But NOT attorney fees, even if the work was willfully infringed!
Proving actual damages (and disgorgement of profits) can be difficult & costly (you need expert witnesses, accountants, etc.) – that’s why statutory damages are available for timely registered works.
If the dispute is protracted without a timely registered work, the photographer’s attorney fees + litigation costs will likely outstrip any award of actual damages or settlement.
Amy Schumer’s infringement like most all other copyright disputes, where a non-fair use infringer is facing a timely registered work, will very likely settle out of court.
Nada,
Ms Shumer is a famous person, so any photographs taken of her either in a public place or on property where the photographer has permission to be, is considered to be ‘of public interest..’ As is a person on the beach with an amazing body or wearing the latest trending bikini, it’s a news item in the public interest. If the photographer took the shot and then tried to use it in any form of ad campaign, then he/she can’t do that. You can’t use it for advertising without permission.
For example, so I was doing a fashion beachwear shoot, I saw two models on the beach and offered them money and bikinis if they would wear my clients clothes for next seasons promo.. all good.
At the same time a news photographer sees me doing the shoot and takes a pic of me, my crew, the models, whilst we are doing our job.
He/she has every right to syndicate that image around the world as a news item.
Does that explain it for you..?
G
Legality not being a synonym for morality is difficult to understand, isn't it?
I think slavery and the holocaust were highlights. Most people just don't get it.
Taking a photo of a person in public in the city is not in any way equivalent to slavery or the holocaust.
Woosh
That was the sound of the point going way over your head.
Go away now.
You’re making a common mistake here of assuming that somebody who thinks your comment is shit must not understand it or get your point. I understand you and get your point. My point is that your comment is shit.
FYI, jackass: Amy Schumer likes the photo, which is why she posted it on Instagram. In an ad for products she sells. The photographer took it for news publications and she copied it to advertise her business which sells the shirt she was wearing, instead of paying a photographer to photograph her in the shirt.
I hope he wins the full 150k, plus attorney’s fees and costs.
Oh, look at that, the idiot is upset.
I’m sorry I upset you.
If by "upset" you mean laugh at your response...
Now you've been reduced to lame attempts at echoing, much like a pre-schooler.
Okay, I’m going to stop now because I don’t think you have an actual point to respond to and there’s no reason to continue. You may have the last word.
Awesome!
Unless the photographer submitted a cease and desist letter requesting the photos be taken down, the photographer should be sued for filing a frivolous lawsuit. I'm sorry but I disagree with some of the coments and insinuations being made that just becuase a celebrity is rich, they should have to pay ridiculous claims in court. How much money did Ramales lose because the pics were on instagram? Contrary he's probably got more press about this than any of his work. Cease and desist and if blown off then sue.
You send a cease and desist letter along with a demand for money. The infringement has already happened. The photographer’s rights were violated.
Cool she pays him and he uses the money to get bailed out of jail for stalking and harassment. Sounds like a good trade.