Legality of posting pictures of yourself on social networking sites

Every one of us, at some point or the other has posted our pictures on social networking sites. Sometimes they are clicked by us, sometimes by friends and sometimes by strangers, but can we legally post all those pictures without infringing someone’s copyright?

Generally speaking, a problem like this seems to be too far-fetched and does not bother common individuals like us, but when it comes to celebrities the stakes are much higher.

The ‘JLo’ Incident

Popular Hollywood celebrity Jennifer Lynn Lopez (JLo) has been recently sued for alleged copyright infringement by Splash News and Picture Agency which is a photography agency. The incident dates back to 2017 when JLo posted a photograph of herself with her fiancé Alex Rodriguez on her Instagram account.

However, she is not the first to land in trouble, other Hollywood celebrities such as Gigi Hadid when she posted a photograph of herself standing on a street smiling in a denim outfit on Instagram, Khloe Kardarshian when she posted a photo of herself arriving with her sister at a Miami restaurant, Ariana Grande & Jessica Simpson are few others on the list have also landed themselves in similar law suits.

These incidents are relevant for us as they all, by and large, revolve around the same question of law i.e. whether Copyright of a Photographer prevails over the Right to post your own photographs on your social networking account.

To understand the issue, let us first discuss these two concepts in detail.

Right to Publicity

“Right to Publicity” in common parlance refers to “Personality Rights”. These are Rights of an Individual to control the commercial use of his/her name, image, likeness or identity. In most jurisdictions, Personality Rights are generally considered Property Rights and not Personal Rights.

So, when JLo shared her picture with her fiancé on Instagram, it prima facie seems that, she does not need any license, authority to reproduce, publicly display, distribute and/or use the photographs as she possess Personality Rights in that picture. However, situation becomes complex by the presence of a contrasting Right of the Photographer.

Photographer’s Angle

Splash News and Picture Agency, who clicked the photograph on the other side has protection under Copyright law which protects original works of authorship. Therefore, when its Photographer took photographs of celebrities/public figures in a public place to illustrate a newsworthy story, they owned Copyright in the same and can sell the images to media/news agencies and/or distribute the photographs for a fee.

This is exactly what they intended to do in the present case as the photograph in question was creative, distinctive and valuable. Considering the JLo’s celebrity status the they could have earned a lot from the picture, which eventually they were unable to, since JLo shared the picture through her Instagram account, it automatically got circulated to her 102 million followers on Instagram and hence the photography agency is seeking $150000 as damages and an injunction against JLo.

Battlefield

So now there is clear battle between Personality Rights of JLo and Copyright of the Splash News and Picture Agency. Hence in order to check who the winner here is, we need to dig deeper and understand the exceptions of Right to Publicity.

Newsworthiness is the key

Under US Law there is a clear exception to the Right of Publicity with respect to “newsworthiness” and “public interest”, provided in the First Amendment. The First Amendment protection ensures that the public is constitutionally entitled to know about things, people and events that affects them.

Therefore, if in any case there has been any unauthorized use of an Individual's identity in connection with a "news" or "public interest" story, then the First Amendment rights will prevail over the Individual’s Right to Publicity.

Hence an Individual cannot use his/her Right of Publicity to claim a property right in his/her likeness as reflected in photographs that were taken in a public place to illustrate a newsworthy story.

The 4 Possible Situations

In light of the above, we try to answer the legality of posting a photograph on social networking accounts in these of 4 possible situations.

1. When you go to a Photographer for a photo-shoot of yourself.

In this situation, the person approaching the Photographer for a photo-shoot will have the copyright over the photographs as the Photographer has taken pictures as per his/her instructions. Hence you are free to use it post it wherever you want.

2. When you ask someone to click a photograph of yourself in a public place.

In this situation, the person asking to click the photograph owns the copyright over the same as he/she is the person on whose request the photograph was clicked. Hence you are free to use it and post it wherever you want.

3. When someone clicks your photograph with or without your knowledge in a public place.

In this situation, the Photographer will have the copyright over the same as he has clicked the photograph on his own without your request or instruction. Hence you cannot post it without seeking permission from the Photographer.

4. When someone clicks your photograph in a private place.

This is a violation of Right to Privacy and is illegal and hence the Photographer cannot have a copyright, hence you are free to use it and post it wherever you want.

Conclusion

As we knew from the facts that the photograph was taken in a public place and to cover news story, Splash News and Picture Agency clearly has the exclusive right to use of the photograph and posting of photograph by JLo on her Instagram account may attract penalty.