O’Melveny Worldwide

IP Watchdog: Stars, Paparazzi, and the Puzzling Law of Copyrights

November 22, 2021

O’Melveny partner David Marroso and counsel Megan Smith co-authored this article about how to navigate copyright laws pertaining to photos taken of celebrities by paparazzi that are posted on social media. The authors noted actress, model, and entrepreneur Emily Ratajkowski as a recent example, citing the case O’Neil v. Emily Ratajkowski et al., where Ratajkowski posted a photograph to her Instagram story that celebrity photographer Robert O’Neil took depicting her holding a vase of flowers. O’Neil sued Ratajkowski accusing her of violating his protected interest in the photo, at which point Ratajkowski invoked the fair use doctrine. The case is pending trial and could go as far as the Supreme Court. “This is bad news for celebrities,” the authors wrote. “It means paparazzi will be emboldened to bring similar actions, knowing their claims’ settlement values have increased. And a celebrity’s cost associated with defending copyright actions will skyrocket, since they cannot reliably expect to win summary judgment.” The authors suggest some key “dos and don’ts” that celebrities should be mindful of in order to mitigate risk: DON’T copy/paste; DO use Instagram Stories, Facebook Stories, Snapchat or an equivalent temporary medium, not posts; DO use Instagram’s “Share to Your Story” feature; DON’T try to cash in; and DO your due diligence. 

Read the full article here.