Feeling Cute, Might [have To] Delete Later: Defending Against the Modern Day Copyright Troll

• Publication year: 2020

Feeling Cute, Might [Have To] Delete Later: Defending Against the Modern Day Copyright Troll

Austin Joseph
University of Georgia School of Law

Feeling Cute, Might [Have To] Delete Later: Defending Against the Modern Day Copyright Troll

Cover Page Footnote

J.D. Candidate, 2021, University of Georgia School of Law.

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FEELING CUTE, MIGHT [HAVE TO] DELETE LATER: DEFENDING AGAINST THE MODERN DAY COPYRIGHT TROLL

Austin Joseph^*

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TABLE OF CONTENTS

I. INTRODUCTION.....................................................................................331

II. BACKGROUND.........................................................................................333

A. CELEBRITIES: A CULTURAL PHENOMENON.............................................333
B. THE RISE OF PAPARAZZI....................................................................................334
C. CELEBRITIES VS. PAPARAZZI: FIGHTING THE COPYRIGHT TROLLS.............................................................................................335
D. THE COPYRIGHT ACT OF 1976: WHERE IT STANDS NOW.....................338

III. ANALYSIS .................................................................................................... 340

A. DEFENDING AGAINST THE COPYRIGHT TROLLS..................................340

1. Fair Use............................................................................................340
2. Implied License...............................................................................344
3. Conditional/Limited License........................................................347
4. Joint Author/Co-Authorship.......................................................348
5. Protection of Celebrity Likeness..................................................349

B. POTENTIAL PUSHBACK.......................................................................................350
C. TO AMEND OR NOT TO AMEND (THE COPYRIGHT ACT OF 1976 THAT IS)?.........................................................................................351
D. A LOOK INTO THE FUTURE: HOW PAPARAZZI CAN EVOLVE...........353

IV. CONCLUSION...........................................................................................354

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I. INTRODUCTION

"I don't think pictures have any value today: anyone can take them, cameras have developed so much that you don't need to learn any technique, and that kills the value of a picture. It's a new generation."¹ The rise of social media and the Internet has depreciated the value of paparazzi.² Because paparazzi seek to remain desirable, the infamous act of "copyright trolling" has developed as a means to sustain their monetary needs.³

"Copyright trolling" permits paparazzi to bring federal action against celebrities who post a paparazzi's picture without first paying to license the photo.⁴ Typically, a photographer will capture a celebrity in a candid moment, such as walking on the streets of New York City, and will post the photo online. Upon seeing the photograph online and liking how it looks, a celebrity will then often post the picture to his or her social media account without first paying the licensing fee (likely without knowing that he or she needed to do so since it is a photo of him or her). Once the photographer sees this, the photographer will bring a copyright infringement claim against the celebrity for posting their photograph on social media without first paying the license fee. Wanting to avoid the time and expense of litigation, most celebrities then settle with the photographer—sometimes to the tune of several tens, if not hundreds, of thousands of dollars.⁵

Throughout the past two years alone, multiple celebrities, including Gigi Hadid, Odell Beckham Jr., and Khloe Kardashian, have been sued by paparazzi for sharing pictures of themselves.⁶ Objections have been raised in an attempt to recognize that celebrities should have a right to use pictures of their own per-son.⁷ With the trend moving toward the monetization of social media, developments in technology, and faster sharing capabilities, paparazzi can expect to fight an uphill battle. If this is the case, it is likely "copyright trolling" will continue in order to subsidize the lack of need for professional paparazzi.

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The concept of "copyright trolling" is controversial because courts have yet to determine a solution. Celebrities usually settle the cases because litigation can be costly and time-consuming.⁸ Further, while the Copyright Act of 1976 controls the copyright landscape, Congress could not have foreseen the rise in social media; therefore, courts will be hard-pressed to find an accurate solution. Based on the statute's current state, copyright trolls have a decent argument for infringement. But their arguments are not necessarily bullet-proof. Famous individuals sued for posting pictures of themselves can defend their actions by asserting a variety of colorable defenses.

This Note analyzes the harms of "copyright trolling" and proposes defenses and solutions, such as implied licenses for celebrities or new business tactics for photographers. Importantly, this Note will not address First Amendment issues regarding the right to publicity and press. While the notion of freedom of the press is essential to our democracy, it will not be examined in this Note because most celebrities would not argue that paparazzi should be banished as a profession. This is because paparazzi help celebrities gauge their level of fame: the more paparazzi that desire a celebrity's picture, the more famous she becomes, resulting in more money for the celebrity. Therefore, the Note will instead focus on copyright laws and how the Copyright Act of 1976 can better operate in the current media-based culture. Additionally, this Note will also propose defenses for future cases in which celebrities might try and fight back against copyright trolls.

This Note is organized in a way that first provides context on how this issue arose. The Background Section of this Note discusses the cultural fascination regarding celebrities and the historical rise of paparazzi. It also explores the recent phenomenon of "copyright trolling" and Gigi Hadid's recently settled case. This section concludes by examining the historical context of the Copyright Act of 1976 and the relevant sections applicable to copyright infringement. The Analysis Section of this Note discusses potential defenses, some of which have been posed before the court and others of which have not. Along with drawbacks and counter-arguments to the aforementioned defenses, this Note will also propose possible amendments to the Copyright Act of 1976. Finally, the Note will conclude with a look into the future and a new business model both celebrities and paparazzi could benefit from.

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II. BACKGROUND

A. CELEBRITIES: A CULTURAL PHENOMENON

"[F]amous figures are famous for something: their achievements are recognized by others as worthy, so their fame is a byproduct."⁹ Celebrities began their ascent into the public eye in the eighteenth century.¹⁰ This notoriety is directly linked to the rise in mass media distribution through newspapers beginning in the early 1800s.¹¹ While newspapers originally spoke of wartime heroes and commendable inventions, the issues discussed soon turned to entertainers.¹²

Our human desire to know more about celebrities has a variety of beginnings. First, there is an idea that knowing more about someone of high-status may rub off on the individual.¹³ Further, by "knowing what is going on with high-status individuals, you d be better able to navigate the social scene."¹⁴ If people knew the latest gossip and who is popular, they may be able to climb the social ladder more easily. Moreover, knowing more about celebrities allows individuals to live vicariously through them and their luxurious lives.¹⁵

The long history of celebrity culture demonstrates that people are invested in the lives of famous figures. For instance, take Kate Middleton and the Royal Family. Duchess Kate and her family are not from America, yet many Americans yearn for the story of a normal woman being pursued by a prince.¹⁶ These fascinations are human nature and likely will not disappear in the near future because most people will not typically see a celebrity out and about; therefore, viewers must rely solely on photographs or other sources of media to see celebrities.

Photographs were not disseminated commercially until the 1880s, and, even then, they were black and white.¹⁷ At the turn of the century, journalists started to focus on highlighting individual success via "profiled personalities, [] public affairs, and crucially, the more personal aspects of [people's] lives."¹⁸ soon, film

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and industrialization led to public reliance on photography and journalism to receive news—particularly in regards to famous figures.¹⁹ With this, the door was left open for the position of paparazzi. A paparazzi photographer could fulfill the reader's interest in celebrities while also filling their pockets.

B. THE RISE OF PAPARAZZI

The term "paparazzi" is likely coined from the film La Dolce Vita.²⁰ In this film, Federico Fellini's character, Paparazzo, collected pictures of celebrities.²¹ This behavior was swiftly recreated outside the cinema as the profession quickly made strides. With cinema on the rise, people became enamored with the glamorous actors and actresses in Hollywood's films. Now, "paparazzi" and "photographer" are often interchangeable, though it didn't begin that way.²²

As the public's appreciation for celebrities' lives outside of film grew, people began to crave pictures and news of celebrities' normal lives. The impromptu pictures then began to cover several of the papers.²³ The consumers craved the shot because the celebrity did not know the photographer was present. This "uncontrollable voyeurism" created a "visual form of gossip."²⁴ This peak inside another's life, one that...