The Rise of IP Lawsuits When Posting Images: How to Navigate and Avoid Copyright Infringement Issues

Picture this: You own a women’s swimwear business. You engage your customers by curating eye-popping images on social media that exude athleticism and style. While browsing online, you find a photo posted by someone else of a woman in one of your pink swimsuits diving into a pool. You instantly know that this woman is exactly who your customers want to be! You share it on your profile with the caption, “Making waves wherever I go” and link to your swimsuit for purchase. Within hours the post racks up 50,000 likes and 2,000 swimsuit orders. But the excitement quickly wears off when you receive an email from a law firm representing the photographer, claiming you infringed her copyright. The firm demands that you take down the photo, pay them $50,000 to resolve these claims, and account for the profits you received from the swimsuit sales.

Agencies and law firms representing photographers send out thousands of these letters annually. Some commentators contend they are hoping to make a quick buck from recipients who pay the requested amount to avoid further escalation, while others claim they are protecting the valuable intellectual property rights of photographers. Regardless of the motivation, use of a photograph without a license from the photographer is almost always copyright infringement and is largely an indefensible claim. Furthermore, depending on whether there is a valid copyright registration before the unauthorized use occurs, a prevailing plaintiff may be entitled to legal fees in addition to damages (read: possible big-dollar judgment).

It does not matter that the photo in the example above was of the company’s own product. Similarly, celebrities have been sued for using photographs of themselves when they did not have permission from the photographers who own the respective copyrights. Recent cases include:

• Actress Lisa Rinna was sued by a paparazzi agency for allegedly infringing its copyrights by posting the agency’s photos of herself and her daughters to her Instagram. Rinna filed counterclaims arguing that the agency unlawfully “weaponized” the Copyright Act by filing nearly 50 similar infringement suits. The case was ultimately settled.
• Model and actress Emily Ratajkowski was sued by a paparazzo after she posted a photo he took of her on her Instagram story. The case was ultimately settled.
• The photographer Robert Barbera sued a slew of celebrities for posting his photos to their social media accounts, including Dua Lipa, Ariana Grande, and Justin Bieber. Some matters were settled and others dismissed.

Know the Risks

These cases confirm that for all the benefits that social media can grant, it can also be a minefield for thorny legal claims, particularly with respect to the unlicensed use of images on social media posts, even if they are of you or your own product! After all, contrary to popular belief, just because someone posts a photo on the internet or to a public social media account does not make it public domain.

To avoid the risk of a copyright infringement claim, a license should be obtained for use of any third-party image. It is important to consider who owns the copyright and if the copyright owner’s consent is required to use the image. Also, one must consider the individual(s) who appear in the image and determine whether consent must also be obtained from said individual(s). Both may be required depending on the intended use of the photo. For example, if one is using a celebrity’s image to promote a business or any other good or service, permission from that celebrity must also be obtained even if permission from the photographer has already been obtained.

In some instances, use of a third-party photo may constitute fair use, and is thus not copyright infringement. Fair use usually arises in areas of news reporting and is rarely a successful defense when an image is used commercially. While there is no set criteria to establish fair use and case law varies widely, the Copyright Act sets out guidelines that can be evaluated: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Applying these criteria, it is difficult to see how using a photograph to promote a product or a business can be considered fair use.

Notwithstanding any fair use arguments that may exist, it is not a guaranteed defense and carries litigation risk, particularly since it is a fact-specific inquiry. For example, while the defendant in Walsh v. Townsquare Media, Inc., 464 F.Supp.3d 570 (S.D.N.Y. 2020), successfully argued fair use over an embedded link to Tom Ford Beauty’s Instagram picture of Cardi B in an article about her obtaining her own lipstick shade, the court denied defendant’s motion to dismiss in Sands v. What’s Trending, Inc., No. 20-cv-02735, 2020 WL 8370044 (S.D.N.Y. December 14, 2020), involving the unlicensed use of a photo of actor Joaquin Phoenix in his role as the Joker in an article. The court found that the use was not sufficiently transformative to be fair use.

Finally, while courts have universally found that the use of a photograph that is downloaded and directly posted to the internet or a social media account is copyright infringement, it was traditionally thought to be the case that using a photograph if the image is inline linked or embedded to the original location was not copyright infringement. While the Ninth Circuit still adopts this view, the Second Circuit has taken the position that an inline link or an embedded link to an unlicensed photograph is still copyright infringement because it is an unauthorized “display” of a copyrighted work.

Play it Safe

The takeaway is that in order to avoid claims of copyright infringement or violation of the rights of publicity/privacy, all uses of photographs should be properly licensed and clear, written permission from the individuals depicted in a photograph must be obtained.