In the last three months, celebrities Amy Schumer, Gigi Hadid and Kim Kardashian have all been sued for posting photos of themselves to their Instagram accounts. In each case, the photographer behind the photos in question has alleged that they are the owner and copyright holder of the media, and that the subjects of the photos have no right to post them. Richard Liebowitz, attorney for Plaintiffs in all cases, has filed Complaints stating that “One can not use photographs without the photographer’s permission, even for social media websites.”
In the lawsuit against Schumer, Liebowitz notes that the photographs in question were copyrighted, though he does not note that date of the copyright. A search of the United States Copyright Office records shows that the photographs were copyrighted on February 8, 2020, three months after Schumer allegedly infringed on the copyright by posting the photos.
The complaint against Schumer further states that Plaintiff is “the sole owner of all right, title, and interest” in the photographs. However, if the photo was previously shared on a social media platform by the Copyright owner, this may not be the case. For example, Instagram’s terms of agreement read as follows: “[W]hen you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivate works of your
As such, any Plaintiff who has posted the media at issue on Instagram is only a non-exclusive licensee of the work. Courts have been receptive to this Instagram copyright case defense, however, the issue has not been litigated since most Copyright defendants opt to settle promptly. In the meantime, cases against celebrities who post photos of themselves on Instagram continue to be filed.