JENIFFER LOPEZ: SUED FOR COPYRIGHT INFRIGEMENT. BUT…REALLY? The thin line between personal rights and IP rights.

Imagine that you have been legally stalked every minute of your life, being unreasonably intruded upon by paparazzi and agencies claiming and making a living out of your life. Imagine that you post a  picture of yourself on Facebook or Instagram and here they come, bombing you with lawsuits, and public attention because you took them legal right to post licensed versions of the photographs, your post results in decrease of costumers who are interested in viewing the photo in a magazine or newspaper, because they can see it for free on your profile, but importantly it results in plaintiff and for the photographer it represents loss of revenue from licensing the photograph.

Jennifer Lopez, 50, famous singer, actress, designer, producer, expresses in her song Love don’t cost a thing a romanticized idea of unconditional love that doesn’t need money and luxury to survive.  Well love will apparently cost her 150.000 dollars for posting a photo of her and her fiancé Alex Rodrigues holding hands on her Instagram account. Splash News and Picture Agency are suing her for copyright infringement, claiming that they are the owners and exclusive copyright holders of the photo she posted in 2017. The photo agency claims that Latino singer was informed about her infringement in a letter to her representative in 2017 and the photo hasn’t been removed.

Photo: Andrew Toth/Getty Images. Photograph is symbolic. https://people.com/music/jennifer-lopez-alex-rodriguez-engagement-party-los-angeles/

“This is an action for copyright infringement brought by plaintiff, the holder of the copyright to the photograph described below, against defendant for use of plaintiff’s photograph without authorization or permission,” (Thomas, 2019)

Celebrities often intrigue us with stories, affairs, photos from their life, but nowadays the list of singers, models, actors, musicians that are being sued for copyright infringement is getting longer and longer.  Ariana Grande copyright infringement case was settled in July when it was “dismissed and discontinued without cost’’ (Thomas, 2019). Khloe Kardashian, Gigi Hadid and many others faced the same lawsuit. Notoriously, controversial movie Joker shocked the viewers not only with the story and scenography, but also with featured song used in one of the scenes by Gary Glitter, a convicted paedophile, currently serving 16-year prison sentence for abusing three girls. If the singer would receive royalties, licensed song would make Gary Glitter a millionaire right from his cell. Fortunately, six days ago rights holders for Gary Glitter’s catalogue of songs have stated that rock star will not receive royalties from one of his songs being used in the movie.

˝Copyright infringement (colloquially referred to as piracy) is the use of works protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work’s creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement’’ (Wikipedia)

The moment you put your ideas into tangible form you have copyrights. But you can use a proper notice: the word “Copyright” or the international symbol © to improve and protect your rights in advance. Secondly, registration! It is not required for copyright to exist, but if done early enough, you can enormously decrease the damage of someone infringing your work.

Copyright law differs from country to country in United States copyright enforcement falls under the exclusive jurisdiction of the federal courts. U.S. you have to register your copyright to grant it protection with U.S. Copyright Office. In Slovenia, on the other hand has 5 international copyright agreements and is a member country of the Berne Convention for Copyright. Copyright protection is automatic with creation of work many countries, however,  It is still important to register copyright, especially in anglosaxon jurisdiction.

Legal penalties for copyright infringement, let’s take U.S. for example, are: award of damages ” If you are accused of infringing the copyrights of a copyright holder who registered her copyright within three months of publication, the copyright holder can seek statutory damages.” (Punishment for Violating Copyright Laws), infringer has to pay all court costs and attorney fees, law in US provides a range from $200 to $150,000 for each work infringed and lastly you can end up in jail for copyright infringement even though it requires a commercial profits in the millions before the maximum penalties will be imposed. Again, if you have your work registered, you gain a lot of advantage in disputes.

On the other hand, in the case of Jennifer Lopez and others we can notice another delicate topic of intellectual property law that opens a new debate. 1) Jennifer Lopez owns her own brands but most notably she is herself a brand, she uses her social statues, fame, for promoting product, service, idea, raises awareness and so on. 2) Jennifer Lopez is a brand like as many other celebrities because she has fans, she raises joy, enthusiasm.  A major part of this kind of a brand is her own visual appearance, her talent and mostly personality. From this perspective, how is It even possible that she is sued for picture that she is on? And what about privacy rights and rights of publicity or so called “image rights” in those paparazzi v. celebrity lawsuits? “Image rights” include the right to prevent unauthorised use of someone s name, physical or slogans, signatures and so on. “This concept comes from the idea that each person should be able to control how his or her “persona” is commercialised. Jurisdictions including the United States, Canada, and much of Europe (Germany and France especially) have well-established rights of publicity.” (Farish, 2018).

Paparazzi are the exclusive holders of the copyrights in the photos, because they are creators of the photo and this gives them automatic rights over the content regardless whether the photo was consensual or not, and when someone makes unauthorized use of those photos this person can be sued over infringement. Because privacy and consent is one of the most important aspects of modern world, there is a rise a calls for reformation the 43 year old Copyright Act in United States. Hadid’s defence in her case of copyright infringement centred largely on claims of fair use. Her defence argued that she mainly emphasized her contribution to the photograph when cropping an image making a focus soly on her smile and posture and not photographers’ composition also she did not make any profit by doing so.  “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry.” (Copyright.gov). This means that if a person has not made any profit from the image, or cannot do so by producing, publishing the photo, if they use image in a meaningful way, they can be proclaimed as not guilty. Besides paparazzi often relay on their right to report matters of public interests and concern, but that are almost none regulations given what this concern of a public may be, and in my opinion,  there is nobody’s business whether a celebrity showed cups, or straps of bra or something even more vulgare and bizarre as this. In the future there will probably need to be some changes and more exact statutory provisions regarding private rights, publicity and copyright law.

In conclusion, make sure to be properly informed about your copyrights, but also respect privacy and publicity rights of people.

Copyright law differs from country to country. Make sure:

  • you know what you are doing before selling, posting or publishing
  • most importantly have a second thought before posting and publishing something that is not yours, even if you don‘t know who the author is and
  • especially if you have a person on the photo, respect privacy rights and be careful when that person is brand herself.

Todisco E., 2019. Jennifer Lopez Sued for $150,000 for Posting a Paparazzi Photo of Herself with A-Rod: Reports. People.https://people.com/music/jennifer-lopez-sued-posting-paparazzi-photo-alex-rodriguez-instagram/

Master T.Punishment for Violating Copyright Laws.Chron. https://smallbusiness.chron.com/punishment-violating-copyright-laws-55157.html

Thomas, B., 2019. Gary Glitter will not receive Joker royalties, say rights holders. The Guardian https://www.theguardian.com/music/2019/oct/15/gary-glitter-joker-royalties

Zaharoff, H.G,2015. Know your copyrights: A legal guide for writers  Morse.Law https://www.morse.law/news/know-your-copyrights

Kenton W., 2018. Copyright Infringement https://www.investopedia.com/terms/c/copyright-infringement.asp

Farish K., 2018. Avoiding Legal Problems When Using A Celebrity’s Image On Your Products. Mondaq. http://www.mondaq.com/uk/x/669240/Trademark/Avoiding+Legal+Problems+When+Using+A+Celebritys+Image+On+Your+Products

Copyright.gov, 2019. https://www.copyright.gov/fair-use/more-info.html

L.R.P.