Should Photographers Be Allowed to Claim Compensation From Celebrities Posting Images of Themselves?

Should Photographers Be Allowed to Claim Compensation From Celebrities Posting Images of Themselves?

Ariana Grande may be everywhere at the moment, but that hasn’t stopped the chart-topper becoming the latest in an ever-expanding line of celebrities to face copyright laws. She is now being sued after posting paparazzi photos of herself to her Instagram page, so we ask, should photographers be paid for their usage of such images on Instagram?

A photographer named Robert Barbera took the images, and is now claiming Grande had no right to post the pics. Barbera states she never asked for permission, nor has she paid for usage; she just lifted them from a website and used them freely.

In news sure to irritate Barbera, Grande has over 154 million followers, and the post featuring his photos, without credit, garnered over 3.4 million likes. To make matters worse, Grande allegedly posted the photo on the day her "Sweetener" was released. In the photo she is seen carrying a vintage bag with a custom "Sweetener" logo added to it, and accompanied the picture with a caption of "happy sweetener day." Thus, Barbera believes it was used as a form of promotion for the album.

TMZ reports that the photographer is asking for either the profits she earned from the photos, or $25,000 for each photo, whichever of the two amounts is greater. The photo has since been removed from Grande’s Instagram.

This, and many other of the recent court battles over celebrities posting images of themselves, opens up a new kind of debate. Primarily, it raises questions of the morality of paparazzo photographers, and whether they should be the sole party to profit from such images. Even amongst the photography community, opinion is divided. On the one hand, celebrities accept being photographed in public as part of the territory; a hazard of the job, if you will. While others take a much harder line, insisting that as they are the subject of the image, it is fair use to use on their own social media pages, and seemingly treads into new territory in which federal courts must settle on a fair compromise.

The main issue that arises from such legal cases is that it’s nigh impossible to directly link an Instagram post with any profits made as a result. If Instagram Story’s "Swipe Up" option is utilized, there may be means to find a correlation between those who have directly purchased a product as a result of following through from the social media site. However, in most cases, Grande’s included, the image was posted to her feed instead. Quite how many people the picture influenced to buy or stream her album is impossible to know.

If Jennifer Lopez’s recent case is anything to go by, there is perhaps life in such cases. Lopez recently backtracked on her legal dispute, possibly signaling that things were looking to go in the favor of the photographer.

Lead image: "Ariana Grande - Oslo Spektrum 2015" by NRK P3, licensed under CC BY-NC-SA 2.0.

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23 Comments

How many times is this going to be rehashed? You don't (and never did) own any copyright rights just because you appear in a photograph. Publicity rights and copyright are not the same. This isn't some "gray area" the courts have yet to decide. If someone takes a photograph of you without a release, you may have some recourse in prohibiting what that image is used for (i.e. your face on an HIV billboard). But don't confuse this with you "owning" or having the right to own that photograph. Just because people "feel" like they have the right to copy someone elses work and use it however they want, does not change the law. If you (or anyone else) thinks they should be co-owners of every photograph they appear in then get some congress critters to agree and change the law. Otherwise, stop copying and pretending you aren't breaking the law.

Please stop confusing people about copyright law. It's hard enough for non-photographers to understand it in the first place.

Disclaimer: This is all U.S. law, your country may vary.

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Rob Mitchell's picture

Here we go again. <sigh>

Rob Davis's picture

As others have said, this is settled law in the United States. Especially when "influencers" promoting a brand can earn six figures per post, it's beyond acceptable for photographers whose content is being used to ask for compensation.

Motti Bembaron's picture

The rule should be: If someone takes a photo of you WITHOUT YOUR CONSENT and makes money of it ( selling it to agencies and such) you, the photographed individual, has the same right. People abuse the privacy of others should know that their photos are fair game.

When taking photos of clients THEY have to have my permission to post them digitally or print them. I happen to grant my clients full use of their images both digital and print but that's my choice.

Matthew Paradis wrote, “Please stop confusing people about copyright law. It's hard enough for non-photographers to understand it in the first place.”

You can’t say that any better!

While the photographer didn't ask permission to take her picture she was in public and he does have every right to take her photo he owns that picture and just like he has no right to sell that photo to say Pepsi to sell soda, she doesn't have any right to use his photo to promote herself or any products that she is associated with and or makes any money from without paying the photographer for use of the photographs.
When photographers are hired to take photos of celebrities they have to deal with their publicist and contracts that limit what the photographer can do with the photos after the shoot. I have heard of celebrities asking for contracts that make them the owner of all of the photos taken in a venue, that have to be signed by the photographer before they can gain entry or just making them the owner of the photos taken at a shoot, they make this a condition of the job and they do not offer extra compensation for this.

While I don't think much of paparazzi, the law is on his side in terms of his ownership and paparazzi making celebrities pay for the use of their photos is some kind of justice for the photographers that have had to sign over the rights to their photos in order to do a job (I do not know if Ms. Grande has ever done this to a photographer I'd like to think she hasn't). Everybody should be paid for their work if you like a photo taken by you even one taken by an annoying paparazzi then pay for it or hire your own photographer to accompany you so that you can use his photos.

Adam Lee's picture

Did you not see the article on F-Stoppers in March? The press were in an uproar over the fact that any photographer shooting at an Ariana Grande concert had to sign a contract handing over all copyright to her tour company, can only use the photos they take with written permission, and only use them once for the news outlet they were assigned by.

https://fstoppers.com/news/ariana-grandes-sweetener-tour-just-went-sour-...

I think there is an angle people seem to be missing here about the photo of Ariana. How did Robert know she was going to be at that location at that time? Either he followed her or he was tipped off about her location. Anyone consider the possibility that Ariana herself or someone on her staff might have tipped off Robert where she was going to be in order to get a photo suitable for use by her without hiring or paying for a photographer? This could all be by design, I guess we will find out when it goes to court.

In LA there is a network of valets, hotel concierges, restaurant hostesses and waiter who know who to tip off when there's a a celeb around for a finders fee.
A friend of mine who made $$$$$ as a member of the gutter press was said they often did set up shots with celebs PR folks. Like Miss X will be someplace with new BF at a certain time. Even staging arguments or PDA for better circulation.
It won't go to court.

Scott Spellman's picture

U.S. Copyright Laws are 100% clear on this topic and the rights of the Copyright Owner and Subject. Everyone in the Entertainment Business knows these laws, but often chooses to ignore them when convenient. Ariana could have hired a photographer to take the exact same photos, but chose not too. Her Management could have easily agreed to a license fee before publication and chose not too.

How is it even a question that photographers control publication of the photos they own?

Christopher Eaton's picture

Yes, he should get paid for a photograph he took that is used to promote the artist and her money-making album.

Period.

If you disagree and are a photographer, please sell your equipment and move on to something because you are likely happy to give your photography away for free and have already figured out magical ways to feed your family with exposure and credit.

Lennart Böwering's picture

"Yes, he should get paid for a photograph…"
Legally: Yes. Period.
Morally: A strong maybe.

He probably already made money by selling the images to another party, and that was the money he planned on making.
I'm very much against photos without permission except for very specific journalistic situations, which is thankfully the rights situation in my country.
So no, I won't sell my equipment but rather rely on subjects in front of my camera, who actually want me to photograph them.

Dan Marchant's picture

"While others take a much harder line, insisting that as they are the subject of the image, it is fair use to use on their own social media pages, and seemingly treads into new territory in which federal courts must settle on a fair compromise."
You clearly haven't done any sort of research into Copyright law before writing this. There is nothing even remotely new here. This is was long ago settled by the courts and unless you actually have any compelling new evidence to present there is no need to revisit it or for any sort of compromise. The photographer owns the copyright on the image and no one (famous or otherwise) can use it without permission.

If someone wants to use such an image there is simple process in place to allow it. They ask the owner for permission and pay a license fee if required. It is a process that Ariana and her management understand only too well because it is EXACTLY the same processes that someone would use if they wanted to use her creative work.

While no doubt that copyright law says that the image is the property of the photographer, I am assuming that person being photographed has rights to. As someone said, it was in a public place, so the photographer is not doing anything wrong, but if they use the photo in a commercial setting then without a model release clause they could be sued. While technically the photographer is within their rights to sue, the relationship between paparazzi and celebrity is an unwritten one. If one party tries to assert their rights beyond that, then both parties suffer. So the celebrity could sue all photographers of using their image without permission, in the end no one ones. The celebrity is out of the public eye and the photographer does not make a living. Pretty sure that a better approach would be to come to a low key agreement to provides rights for the image.

Just to add commenting on this feels like trying to make morality judgments on the relationship between a tapeworm and a leach.

While photographically there is some valid points the fact is people who hide in bushes trying get candid shots and the people who deliberately feed them should not be encouraged or condoned

Ok, you're clueless. Pap pictures aren't use commercially. They're used editorially. That's legal and the celeb has no say over that.

Julien Jarry's picture

It should be mandatory to credit the photographer. That’s payment enough on Instagram at this level. Better yet, Instagram can create a photographer input that is necessary to fill out during posting. That would be great for us.

Kirk Darling's picture

Reposting requires input from the original poster. Whoa, that IS an idea.

Chris Cameron's picture

How is this opening up a new kind of debate? It's the same debate that has always been around stealing others work is wrong and there are established legal punishments for doing so. End of debated, surely.

I am a photographer, but not a Paparazzi. In any case of "Improper Usage, a warning should be given ASAP. Like:" You are using my photo on xxxx, Please pay me for the usage $xxx.xx
or remove it within 10 days. With a fair price. One question would be: Was the photo already paid for by an agency or publication? The asking price to the Celebrity can be 10% or more of the fee. These things should be worked out by a photo organization or worked into existing copyright laws and/or existing rules of behavior. Photography is mostly about "Usage",
not, "Who has the right or the rights?" Is there any organization of paparazzi photographers, NYC/LA.

I lose more respect for fstoppers on a daily basis with crap content like this

The author needs to fact find before he writes such an incorrect and misleading article. He needs to actually learn something about copyright. There is no debate amongst photographers. The law is the law. As for celebrities claiming "fair use", bull. Fair use is a specific legal term that doesn't apply. Please name some celebrities that have actually used the argument of fair use. Does the author even know what the term means? As the law is quite clear on copyright, why is fstoppers running such a misleading article. The author is trying to muddy the waters on a clear issue. He doesn't deserve to ever make another dime as a photographer. You all should be embarrassed.