Cyrus became the latest celebrity to face such accusations on Friday when he was photographed Robert Barbera filed a copyright infringement case against the star, claiming she reposted his 2020 photo showing her waving to onlookers on Instagram without a license.
If it sounds familiar, it must: the same photographer filed a very similar lawsuit against Dua Lipa in June, similarly accusing her of infringing his copyright by posting one of his photos on social media.
It doesn’t seem fair. Why can he sue celebrities over pictures of themselves?
For celebrities hounded by paparazzi, it might seem reasonable that they can at least use the photos themselves. That’s basically it Khloe Kardashian said on Twitter in 2018 after being hit with a similar lawsuit to the ones Cyrus and Lipa now face.
“They can legally stalk me and harass me and on top of that I can’t even use the pictures of myself, they’re going LOL what the hell is this,” Kardashian wrote then.
But as unfair as it may seem, US copyright law is pretty clear: Photographers own the copyright to the photos they take, and using those photos without a license constitutes infringement. Simply appearing in a photo does not give a celebrity co-ownership of it, nor does it give them the right to repost it for free.
Nancy Wolff, an attorney at the law firm Cowan DeBaets Abrahams & Sheppard, which specializes in photo copyrights, attributes the problem to a fundamental “misunderstanding” by celebrities. “Just because they’re the subject of an image doesn’t mean they have any ownership of it,” Wolff told Billboard earlier in the summer.
Can they not sue Hi m to take a photo without consent?
Someone like Cyrus might be able to sue over a photo taken in a place where she had a so-called reasonable expectation of privacy, e.g. inside his home. But in public space – on the street, a restaurant, a nightclub, a public beach – paparazzi can generally snap without seeking permission.
In certain circumstances, a celebrity could claim that an image 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 ad or marketing material would clearly violate her right of publicity, for example. 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 in copyright lawsuits after posting pictures of themselves.
Justin Bieber and Ariana Grande has also been sued — by the same photographer who sued Cyrus and Lipa this year. Cyrus’s ex-girlfriend Liam Hemsworth was hit by one in 2019. In another case, Katy Perry was sued after she reposted a photo of her 2016 Halloween costume: a Hollywood-grade Hillary Clinton outfit that featured professional prosthetics.
Sports stars are no exception, although they have more often faced lawsuits filed by freelance in-game photographers. NFL quarterback Deshaun Watson was sued in 2020 for posting action photos on Instagram, and LeBron James was hit with a lawsuit in 2019 over a photo of himself dunking that he posted on Facebook.
What legal defenses do they have?
Most cases are settled quickly, 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 a photo of her carrying a large vase of flowers down a New York City street, the model and actress described her anger over the case in a style posted on New York magazines 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, Ratajkowski’s lawyers argued that her use of the photo was a legal “fair use” because she had posted it on Instagram as a criticism of invasive paparazzi. They claimed she had turned the photo from an “exploitative image” taken without her consent to “a commentary on the harassing and relentless behavior of paparazzi as plaintiff.” But the thing ended in a settlement before a judge had the opportunity to rule on these arguments.
Other celebrities have made other arguments. When Gigi Hadid was sued in 2019 for reposting a photo, she claimed she had an “implied license” to use the photo because she had “stopped to allow the photographer to take her photo”, meaning she had “contributed ” to the creation of the image. Perry claimed that her fancy Hillary costume was itself copyrighted, meaning that the photographer was responsible for the infringement. But both cases ended without decisions on these arguments.
What kind of injury is Miley facing?
If she is found to have violated Barbera’s image, Cyrus could face damages. The photographer could choose to seek either “actual” damages, i.e. the money he lost by not being able to license his image, or fixed “statutory” damages, which could be as much as $150,000 per infringed work. How much money Barbera lost, or whether he is entitled to the statutory damages, would be hotly contested in litigation.
But such cases almost never reach that stage. Instead, many end up with a settlement agreement where the accused celebrity pays a smaller amount to avoid the headache and cost of continued litigation. The terms of such deals are almost always private, but in a case involving just a single image, they likely range in the tens of thousands of dollars.