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.
What are you talking about? Do you have another source that says the photographer did these things or are you just making up examples of things that a photographer could do that you would disagree with? And how is any of this relevant to the story, which is about Amy Schumer committing copyright infringement and the victim trying to enforce his rights?
They're not photographers; they're predators who use cameras. Absolute scumbags.
You'd think a content creator would understand the rights of content creators. SMH.
I don't. Perhaps because I am a "creator" and not someone trying to make a living stalking people for snapshots on the street. If 70% of your photos are someone holding a hand up to block the picture, you're not a photographer,you're a parasite.
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There are many photography legal falsehoods in the comments. If a person, especially a public figure is in a public space or is visible from a normal public space pedestrian view, meaning the photographer did not use a ladder, helicopter or drone to circumvent normal privacy, it is legal to photograph them.
Photographers own the copyright to their images. They can absolutely make money off of street images without gaining permission. However the one caveat is though the photographer owns the image, the celebrity or person on the street, owns their own “right to likeness” and cannot be defamed without permission. Legally this means the photographer can sell and profit off the images in a journalistic, documentary or street photography context. However any usage of those images for advertising or endorsement, for commercial use beyond gallery/ art prints or on commercial products such as t-shirts, mugs or other goods violates that person’s right to likeness and they can sue on the defamation of their right to likeness, not that their picture being taken without permission. Also if the likeness of the image is altered in anyway such as through photoshop or text is added that adds meaning not provable or implicit in the image such as claiming the subject is drunk or in a particular state of mind, the presentation of the image can be considered defamatory and a violation of the subjects right to likeness. For all of us GET SIGNED RELEASES WHENEVER POSSIBLE.
Is sharing an image on Instagram a violation of the photographer’s copyright or fair use? I am not a lawyer but it is my understanding that there are several issues involved. First off that the subject owns their own right to likeness does not give them greater or less standing in being able to post their own image on Instagram or their personal websites without the photographer’s permission. The photographer still owns the copyright to the image and can control it in any use outside of what is legally “fair use." Even if the image is posted within fair use, the photographer must be credited by law and any copyrights posted.
What is not legally clear is whether Instagram or social media not linked directly to a store or commercial website is fair use and where those exact lines should exist. Also there is the question of whether simply wearing a garment in public is considered commercial advertising and would violate the photographer’s copyright or the brand’s right to likeness. Most people do not make money off of their Instagram accounts however there are a small group of influencers who do and even smaller group who make a great deal of money off of Instagram and other personal social media. Where do we draw that exact line for fair usage? With photo credits, is it simply enough to credit the name and copyright in the text or should a link to the original news source or the photographer be required? If the image was published on a public figure’s professional website, there is a stronger more black and white argument for copyright violation. Social media is more personal and can simply be viewed as a public conversation which presents a very strong argument for fair use.
The other issue the photographer is suing Schumer over that may have more legal standing, is a claim that because she is wearing a T-shirt she also sells on her personal website, Schumer needed to license the image first. Again in this instance there is a legal grey area. If Schumer posted the image directly on her website which sells the T-shirts it would probably be a clear violation of right to likeness as would including a link in the Instagram post to the page on her website that sells the T-shirts. The grey area is that when wearing or photographing a recognizable brand item when is it advertising? Many TV shows and movies use fake product brands for cereal, beverages and such as in a fictional dramatic context they either need permission from the brand to use the product. In other films/TV brands will pay for product placement as advertisement. When celebrities are at red carpet event where they will be heavily photographed many brands will give their garment to them for free in hopes they will wear them and the brand will be advertised through EARNED media which is different than commercially produced and placed ads. There may be some legitimate legal argument that Schumer wearing a recognizable brand on social media is advertising for that product. However this is a double edged sword for all photographers because that would establish rights for the owners of any brand regarding posting photos of their product in social media. In other words if a legal precedent is established that all images of a celebrity or even a non-celebrity wearing or using a recognizable brand is commercial advertising even if there are no links to that product’s store or a commercial website associated with the product, the owners of that brand, an individual or corporation, would have the equivalent of a “right to likeness” of their brand in all images and would be able to sue any photographer who presents images of their brand without a release or financial compensation to that brand for usage. Companies can and do successfully sue for brand defamation when their product is presented in a dramatic movie, TV show or other dramatic or fictitious context that the company feels demise or dilutes their brand. That would not include news photos or video an alleged murderer wearing a recognizable brand when being apprehended even though that would hurt the brand’s image. The law does provide a very wide latitude for companies to decide what they consider defamation and brand dilution in commercial contexts.
If I were Amy Schumer’s lawyer, I would absolutely counter-sue on the grounds that if the image is advertising, by default for the T-shirt, the photographer needed to obtain permission and possibly compensate Schumer for any presentation of that product in his photos. Do we want lawyers from Levis ordering photographers to take down any image of someone wearing their blue jeans that the company simply does not like or is not in a context the company wants associated with brand image? Should street photographers or photojournalists have to obtain released from any brand featured in their photos? We do need better legal clarification of how existing copyright laws are applied to social media. We do need to decide if wlaws differentiate the social media of influencers such as Kylie Jenner who makes a lot of money off her instagram and those who make little to nothing?
So much to consider. Appreciate your thoughts. Thanks.
So much to consider. Appreciate your thoughts. Thanks.
Jon Winkleman wrote, “Even if the image is posted within fair use, the photographer must be credited by law and any copyrights posted.”
In the US, and outside a contractual agreement between a photographer, client, and others, there’s NO legal requirement to provide the photographer with a credit line when a work is used within copyright’s Fair Use. See 17 USC § 107.
However, per 17 USC § 106 (the Visual Artists Rights Act (VARA)) and 17 USC § 101 (Definitions), the US has limited moral rights of attribution (right of paternity) where certain qualifying and typically non-commercial “works of visual arts” like paintings, drawings, sculptures, and photographs (exhibit use only) and that exist in limited editions of up to 200 signed and consecutively numbered by the author, require attribution.
Jon, if you can, please provide a legal, copyright regulation, or case law citation/s where a photo credit is REQUIRED by US law (per Fair Use).
Did the trolls here crawl her from under the same rock as the zoom trolls? David Glove, Mark England?
Wow these articles certainly bring out all the boring Norman’s who claim to be part time legal experts don’t they.
There’s a legal standpoint and a moral standpoint both worth of discussion. What’s your positive contribution?
My positive contribution is more of an observation.. an article gets posted about genuine photography and creativity etc and gets what, 2 comments.
One gets posted about yet another American suing a fellow American and 3/4 of the people who frequent the site get a massive hard on about their favourite subject (suing people and lawsuits) and all become armchair experts, leading to 200 comments and all the ‘fun at party’ types grinding away on their keyboards. If it wasn’t so pathetic it would be funny.
It’s not like this site is bursting with quality content. Mostly it’s just Alex Cooke posting links to other people’s YouTube videos. It seems the only time he actually writes anything is to comment on people’s lawsuits, and when he does so we end up with these poorly researched pieces (not even a mention that the infringer was using the photo to advertise her company!) treating these lawbreakers as the victims.
I quite like Alex posting video links because I’ve found a few good channels through it, and I’m very passive in what I see, I can quite easily just ignore an article. This one I don’t mind people discussing from a right and wrong POV, it’s when all these wannabe lawyers get involved it annoys me, it seems America has a massive obsession with the lawsuit culture and it’s pretty grim tbh, the U.K. is going that way and it makes me sad.
At least right now the whole country is appreciating the actual people that really matter, shop workers and nurses.
Hey, it would be great if we had some better way to enforce laws, but lawsuits are what we’ve got...
Some of stuff I see people being sued for is just ridiculous though, it’s embarrassing. The whole nation is obsessed with it. Mind you after seeing shots of people stood outside government buildings with semi auto weapons and clips of that tiger documentary I think lawsuits are the absolute least of America’s worry’s.
The real problem is that the people in power are usually the ones who don’t want to make it easy to enforce laws...
"not even a mention that the infringer was using the photo to advertise her company!"
umm: "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."
p.s. I've written over 200 original articles, and we publish 3-5 original articles every day: www.fstoppers.com/originals
You’re right, I missed that line. Since you know that Schumer stole the photo to use in advertising, why are you presenting this story as if she were the victim? Why is the headline not “Amy Schumer allegedly copied a photographer’s image to advertise her shirts, gets sued” or something like that? Why “the seemingly never-ending saga of celebrities being sued for posting pictures of themselves on Instagram” which makes it sound like the photographers are being ridiculous and not “the seemingly never-ending of celebrities who can’t figure out how to obey the law”?
And your fascinating and useful contribution is?...