Dua Lipa, Ratajkowski Sued for Posting Paparazzi Photos of Themselves

(Bloomberg) -- Now that the famous are no longer holed up in their manses, the paparazzi are on the prowl -- and not only with cameras. 

Since June, photographers or their agencies have filed more than a dozen copyright-infringement suits against individual celebrities or their companies. The suits are targeting celebs who post photos of themselves on social media -- pictures that they don’t own the rights to.

Recent targets include model Emily Ratajkowski, pop star Dua Lipa, actresses Naomi Watts and Annabelle Wallis, singer Jennifer Hudson, and companies linked to actress Blake Lively, fashionista Bethenny Frankel and the Beach Boys’ Brian Wilson.

Counterintuitive though it may seem, even when the photographer’s subject is an unwilling participant, copyright law falls squarely on the side of the person who captures an image in a public setting. That inconvenient truth, in recent years, has ensnared celebrities in tussles whose legal nuance often is overshadowed by a gut-level feeling that a person can use any image taken of themselves -- even those snapped without their permission -- as they see fit.

“If I was walking into the National Gallery in London and started stealing images off the wall, like, this happens to us constantly -- it’s an actual violation,” said Jesal Parshotam, a photojournalist based in Los Angeles who’s considered among the world’s more prolific paparazzi. “I actually see my images published in places and I’m like in shock, I’m like, ‘Wait, this is my image.’”

‘Mushrooming’

These copyright cases have been thrown back in the spotlight thanks to a recent suit against Lisa Rinna, known for her roles in “Days of Our Lives” and “The Real Housewives of Beverly Hills.”

Instead of settling out of court like most such cases, the star is swinging back on another lawsuit filed by BackGrid USA Inc., which calls itself “one of Hollywood’s largest celebrity-photograph agencies.” The firm -- whose images have been licensed to outlets including TMZ, Entertainment Tonight and the New York Post -- is seeking as much as $1.2 million in damages for Rinna’s posting of eight unauthorized photos of herself and her grown daughters.

In an Oct. 1 filing, Rinna’s lawyer claims that BackGrid’s allegations are barred because the agency “has effectively ‘weaponized’ the Copyright Act in an effort to augment its income.” The ability of photographers to profit from images of celebrities, “and then turn around and sue those same celebrities for posting their own images on social media,” Rinna’s attorney wrote, is “anathema to what the Copyright Act is intended to protect.” 

In the filing, Rinna’s lawyer suggests rendering such claims less lucrative. 

Under U.S. copyright law, each finding of infringement can yield damages of $750 to $30,000, with compensation capped at $150,000 for an intentional violation. Paparazzi interviewed for this story wouldn’t speak on the record about settlement figures, saying confidentiality agreements prohibited them from doing so. 

Nearly two-thirds of the 48 federal lawsuits BackGrid has filed since 2017, the filing says, were filed in 2020 and the first nine months of 2021. That, Rinna’s legal team said, indicates the agency “significantly increased its revenue-generating practice” aligned with the pandemic, citing the “mushrooming instances” of such cases. 

A lawyer representing BackGrid in its case against Rinna didn’t respond to requests for comment. Representatives of BackGrid didn’t immediately respond to a request for comment.

Julie Zerbo, a lawyer and the founder of The Fashion Law, keeps a running list of copyright cases involving paparazzi and celebrities on her website, which covers the retail industry’s legal and commercial challenges.

She attributed the “relative lull” in new filings of such cases earlier in the pandemic to diminished activity “across the board” in “most industries during Covid, save for health care.” That activity has since rebounded. Already, at least two suits from the most recent batch have settled.

Dua Lipa was sued on July 6 by Integral Images Inc., which said the pop star’s alleged unauthorized posting to Instagram of one photo caused her “to realize an increase” to her “advertising revenues and/or merchandise sales.” They settled on Oct. 1. Scott Disick, best known for starring in “Keeping Up With the Kardashians,” and his apparel company, Talentless, were sued by BackGrid on Oct. 3 for allegedly posting eight unauthorized photos to his Instagram, where he has 25.6 million followers. 

‘Swipe Up’ 

Celebrities’ Instagram followers can number in the millions, making the app a prime tool for converting passive fandom into an active source of revenue.

Many stars will use paparazzi shots overlaid with text to guide their followers to buy merchandise -- such as one of Ariana Grande’s “Sweetener” sweatshirts, as alleged in the second of two lawsuits photographer Robert Barbera filed against the pop star and her company, Grandari Inc.

Barbera, who settled with Grande in April 2020, claimed she posted an Instagram story that included his shot of her leaving her New York apartment in August 2018 “to promote” her “brand and clothing by saying, ‘My Merch Is So Cute and Comfy, Swipe Up To Get Da Look’ on the photograph.”

Once a shot loses its exclusivity, paparazzi can miss out on chances sell the photo or draw licensing fees from featured brands. But just as social media tools have made it a breeze to grab and share copyrighted material, they’ve also opened for photographers a world of opportunities to more efficiently squeeze value from their work.

It’s unlikely that celebrities who post an unauthorized image for commercial gain could argue fair use, a legal doctrine that provides an exception to copyright infringement, intellectual property lawyer Elizabeth Vulaj wrote in a July 2020 column for Bloomberg Law. She pointed to comedian Amy Schumer’s “urging her followers to go to her website to purchase the sweater she wore in the paparazzi photo she posted on Instagram.”

Paparazzi generally describe themselves as reacting reasonably upon noticing a lifted image, so long as it isn’t being used to endorse a product or brand. In that case, a luxury brand like Gucci might pay anywhere from $500 to $3,000 to license a photo for use on social media -- a pittance compared to the going rates for an official endorsement deal with a star.

Symbiosis 

Celebrities and paparazzi have always had somewhat of a symbiotic relationship, at times benefiting from each other; at other times accusing the other of exploitation. 

For example, Parshotam, the Los Angeles-based paparazzo, says it isn’t unusual for him to be out for dinner with his wife when he gets a phone call from an A-list celebrity tipping him off about an imminent appearance at a particular restaurant or luxury retailer. He bristles at the stereotype of the overly aggressive and invasive paparazzi that persists more than 24 years after Princess Diana died in a Paris car crash while being pursued by photographers.

“The kind of photographer and sort of animal that existed in Diana’s time doesn’t exist anymore,” Parshotam said. It’s “a misconception that we are harassing.”

Still, some find it difficult to grapple with this nuance of copyright law, particularly when they did not consent to a photo in the first place.

Emily Ratajkowski, who was sued in July for allegedly posting to Instagram three copyrighted images of herself, published a first-person story in New York Magazine last year describing her relationship to her own image. 

“I’ve become more familiar with seeing myself through the paparazzi’s lenses than I am with looking at myself in the mirror,” she wrote. “And I have learned that my image, my reflection, is not my own.”

Among the contested photos is one of Ratajkowski squatting on a sidewalk, clad in white, her right hand inside a blue plastic dog-poo bag, which she posted with the caption “LIVING THE DREAM.”

When Parshotam goes to a newspaper with his images, he said he has to fill out a memo attesting to “every intricacy” of how he obtained his photos. 

“‘Were you on private property or public property? Did the subject ask you to stop taking pictures? Were you hidden? Did you photograph them in one location?’ Because if you photographed them in two or more locations, it can be deemed harassment,” he said. 

That symbiotic relationship, he said, is worth more than mere gratitude for a celebrity having shared an image with millions of followers.

“Their brand,” Parshotam said, “is increasing tenfold because of these images.”

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