Cyrus became the latest celebrity to face such accusations on Friday when photographer Robert Barbera filed a copyright infringement lawsuit against the star, claiming she reposted his 2020 photo that showed her waving to onlookers to Instagram without a license.
If that sounds familiar, it should: the same photographer filed a very similar lawsuit against Dua Lipa in June, similarly accusing her of violating his copyrights by posting one of his photos to social media.
This doesn’t seem fair. Why can he sue celebrities over images of themselves?
For celebrities who are hounded by paparazzi, it may seem only fair that they can at least use the photos themselves. That’s essentially what Khloe Kardashian said on Twitter in 2018, after being hit with a similar lawsuit to the ones Cyrus and Lipa are now facing.
“They can legally stalk me and harass me and then on top of it all I can’t even use the pictures of myself they take LOL what the f— is this,” Kardashian wrote at the time.
But unfair as it might seem, U.S. copyright law is pretty clear cut: It’s the photographers who own the copyrights to the images that they take, and using those photos without a license constitutes infringement. Simply appearing in an image does not give a celebrity co-ownership of it, nor does it give them a right to repost it for free.
Nancy Wolff, an attorney at the law firm Cowan DeBaets Abrahams & Sheppard who specializes in photo copyrights, attributes the problem to a basic “misunderstanding” by celebrities. “Just because they’re the subject of a photo doesn’t mean they have any ownership rights in it,” Wolff told Billboard earlier this summer.
Can’t they sue him for taking a photo without consent?
Someone like Cyrus might be able sue over a photo that was taken in a place where she had a so-called reasonable expectation of privacy, like the inside of her home. But in public spaces – the street, a restaurant, a nightclub, a public beach – paparazzi can generally snap away without seeking permission.
In certain circumstances, a celebrity could argue that a photo of them violated their right of publicity – that is, their right to commercially exploit their own likeness. The use of Lipa’s image in an advertisement or marketing materials would clearly violate her right of publicity, for instance. But simply taking, selling and publishing a photo for editorial purposes is usually fair game.
What other stars have faced these cases?
In addition to Cyrus, Lipa and Kardashian, many other celebrities have found themselves facing copyright cases after posting photos of themselves.
Justin Bieber and Ariana Grande have also been sued – by the same photographer who filed suit against Cyrus and Lipa this year. Cyrus’s ex-boyfriend Liam Hemsworth was hit with one in 2019. In another case, Katy Perry was sued after she reposted an image of her 2016 Halloween costume: a Hollywood-grade Hillary Clinton outfit that featured professional prosthetics.
Sports stars are no exception, though they’ve more often faced cases filed by freelance in-game photographers. NFL quarterback Deshaun Watson was sued in 2020 for posting action shots to Instagram, and LeBron James was hit with a case in 2019 over an image of himself dunking that he posted to Facebook.
What legal defenses do they have?
Most cases quickly settle, but if Cyrus and Lipa want to fight back in court, there are a few strategies they can use.
When Emily Ratajkowski was sued in October 2019 over an image of her carrying a large vase of flowers down a New York City street, the model and actress described her anger about the case in an essay posted on New York magazine’s The Cut: “I learned the next day from my own lawyer that despite being the unwilling subject of the photograph, I could not control what happened to it.”
In court, Ratajkowsk’s attorneys argued that her use of the image was a legal “fair use,” because she had posted it to Instagram as a criticism of invasive paparazzi. They argued she had transformed the photo from an “exploitative image” snapped without her consent to “a commentary on the harassing and relentless behavior of paparazzi such as plaintiff.” But the case ended in a settlement before a judge got a chance to rule on those arguments.
Other celebs have made different arguments. When Gigi Hadid was sued in 2019 for reposting an image, she claimed she had an “implied license” to use the image because she had “stopped to permit the photographer to take her picture,” meaning she had “contributed” to the photo’s creation. Perry argued that her fancy Hillary costume was itself copyrightable, meaning it was the photographer who was liable for infringement. But both cases ended without rulings on those arguments.
What kind of damages is Miley facing?
If she’s found to have infringed Barbera’s photo, Cyrus could be facing damages. The photographer could elect to seek either “actual” damages, meaning the money he lost by not being able to license his photo, or fixed “statutory” damages, which can total as much as $150,000 per infringed work. How much money Barbera lost, or whether he’s entitled to those statutory damages, would be heavily disputed in litigation.
But such cases almost never reach that stage. Instead, many end with a settlement deal in which the accused celebrity pays a smaller sum to avoid the headaches and costs of continued litigation. The terms of such deals are almost always private, but in a case involving just a single photo, they likely range in the tens of thousands of dollars.