By Trevor Maxim, Esq. Legal Perspectives February 09, 2018
In October of 2017, New York Giants wide receiver Odell Beckham Jr. saw his football season reach an early conclusion when he fractured his ankle playing against the Cleveland Browns. The injury made headlines, not only for its impact on the NFL season, but also as tabloid fodder involving one of the league’s biggest celebrities. In the ensuing media frenzy, Beckham re-posted two of the paparazzi photos surreptitiously taken of him returning home with crutches and a walking boot. The photos’ owner, Splash News and Picture Agency, LLC, did not appreciate that, and demanded a $40,000 payment for Beckham’s alleged copyright infringement. Beckham pushed back in a lawsuit filed on February 1 in Louisiana, arguing the Instagram post did not infringe Splash’s copyrights and seeking relief for other privacy-related claims.
Splash News and Picture Agency, LLC
On its website, Splash calls itself “the world’s leading celebrity news agency.” The company appears to earn money by licensing its candid photos of celebrities to news publications. According to Copyright Office records, Splash registered 23 collections of photos in 2017, with titles like, “EXCLUSIVE: Rihanna steps out rocking an oversized denim outfit after an alleged stalker tried to gain access to her apartment in NYC.” Typically, Splash obtains rights to the photos through written transfer agreements with the photographers.
The Beckham Photos
Beckham, in his lawsuit, claims that on October 14 (just days after the October 8 injury) the paparazzi photographer who took the disputed photographs did so “secretly… through a gate at Beckham’s private New Jersey residence with the aid of a telephoto lens, and without Beckham’s knowledge or permission.” The photos soon ended up on TMZ and Daily Mail, websites that frequently highlight the lives of celebrities, presumably for a large fee.
Beckham then posted two of the photographs, which feature him hobbling out of his car on crutches, to his Instagram page on October 26, accompanied by the caption “obj I always find a way. #GodWilling.” Fans consoled him with comments such as “Get well soon big bro.” The post has been “liked” over 300,000 times.
On January 15, 2018, Splash sent Beckham a letter alleging copyright infringement based on the Instagram post, demanding a “fair and reasonable sum of $40,000 as full and final settlement.”
The Lawsuit: Beckham v. Splash News and Picture Agency, LLC, E.D. La. No. 2:18-cv-01001.
Beckham’s legal team decided to go on the offensive and sue for a declaratory judgment that the activity was not infringing. This was likely influenced by the perceived growing threat of such copyright “extortion” tactics—Splash filed a copyright complaint against Jessica Simpson in similar circumstances this January, Khloe Kardashian was sued by a different plaintiff last year, and likely a wave of similar demand letters have gone unreported, perhaps with celebrities quietly paying up to terminate the nuisance claims.
While the complaint does not lay out a precise legal argument for non-infringement, this article will attempt to predict the basic structure:
Prima Facie Case for Copyright Infringement
To prove copyright infringement, the plaintiff must show ownership of a valid copyright and a violation of exclusive rights (copying) by the defendant.
The main requirement for copyright validity is an original work of authorship. This demands only a minimal amount of creativity. While photographs are sometimes attacked as simple “point-and-shoot” depictions of reality (as Beckham describes), the law is clear that photographs merit copyright protection to the extent they portray a scene with unique framing, lighting, timing, or other artistic choices.
Splash appears to have a legitimate claim to ownership of the photo through a written agreement with the photographer, as registered with the Copyright Office.
Sharing a photograph online, such as through Instagram, violates at least the exclusive reproduction right that copyright owners enjoy. The fact that an individual is depicted in a photograph does not grant that person copyright interest in it (the more relevant issue is right of publicity, outside the scope of this article).
Therefore, Beckham’s Instagram post most likely infringed Splash’s copyright. Beckham’s primary argument will be that an affirmative defense absolves him of liability.
Defense of Fair Use
Fair use is a defense to copyright infringement “for purposes such as criticism, comment, news reporting, teaching… scholarship, or research…” 17 U.S.C. § 107. To determine whether a particular use is “fair,” courts weigh four statutory factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This area of the law is notoriously unpredictable, but judges generally analyze each factor separately, using principles from prior cases to assess whether each factor weighs in favor of fair use or against it.
While the complaint criticizes the extortion and “troll-ish behavior” of Splash, the original Instagram post does not make any discernible commentary on the photos or the methods used to obtain them. Instead, the post seems to use the photos to bolster Beckham’s own brand and personal narrative (caption: “obj I always find a way”). The post crops and darkens the photos slightly but otherwise does not visually alter them.
Beckham can argue that the post was noncommercial, given that he didn’t earn money through it, and was simply communicating a life update to fans. However, the Instagram account overall clearly has some commercial purpose: see a November 16 post about Beckham’s Nike shoe model, and an October 20 one about Beats headphones.
This factor probably weighs against fair use.
Nature of the copyrighted work
Splash’s photos were published, which weighs in favor of fair use. The photos are most likely factual rather than creative, given that they are candid shots in a public setting.
This factor also probably weighs in favor of fair use.
Amount and substantiality of the portion used
In his Instagram post, Beckham cropped the photos slightly to fit the square shape of the medium. Still, the primary subject of the photos—Beckham and his ankle—remain intact.
This factor probably weighs against fair use.
Effect upon the potential market
This factor will be a major point of contention. Splash will assert that Beckham’s post discouraged media platforms from paying to license the photos, which is Splash’s core business model (they could instead link to Beckham’s Instagram post for free). The publications TMZ and Daily Mail, however, had already presumably paid Splash for the right to “break” the news via articles on October 19 and 18, respectively. Arguably, a social media posting does not erase the value in licensing a photo for a news article that supplies broader perspective on the story.
This factor is probably neutral or slightly against fair use.
Conclusion: Beckham’s Instagram post most likely does not qualify as fair use. The fair use claim would be stronger if Beckham had used the photos to make a clearer commentary on the destructive nature of paparazzi tactics, such as including them in a collage of other exploitative images.
Defense of Copyright Misuse
Copyright misuse is an affirmative defense that essentially accuses the plaintiff of restraining competition beyond the limited monopoly power that copyright is meant to confer. This often involves an alleged violation of federal antitrust laws.
Courts very rarely find misuse, reserving it for extreme cases such as a copyright owner requiring licensees to promise not to use competitors’ products. In his complaint, Beckham calls out Splash’s “predatory and distasteful tactics,” but a court would likely find that enforcing a claim for copyright infringement, even if distasteful, does not restrain competition at the level of misuse.
Defense of Unclean Hands
Unclean hands is an equitable doctrine that applies where the plaintiff has engaged in serious misconduct, directly related to the controversy between the parties, that injures the defendant.
Like misuse, unclean hands also rarely applies in copyright cases. However, the flexibility of this doctrine could allow Beckham to reference the uniquely “distasteful” business practices of Splash in a way the court might recognize. Unclean hands has been a successful defense where the plaintiff falsifies a court order, falsifies evidence, or misrepresents the scope of a copyright to a court or opposing party. On the other hand, courts have enforced copyrights even where the content is itself obscene, deceptive, or in violation of gambling laws.
There is no clear precedent for unclean hands involving a paparazzi scenario. Beckham will need to stress that these novel facts warrant a new application of the defense, arguing that Splash (and its photographer) embarrassed Beckham by exposing a private and vulnerable moment to the world, monetized that embarrassment by selling the photos to tabloids, and attempted to monetize it again by demanding $40,000 from Beckham for posting a picture of himself on social media. Copyright law, Beckham argues, should not validate such behavior.
The story does not reflect well on Splash. In response, though, Splash should point out that the photos helped boost Beckham’s public image as a sympathetic figure; Beckham proudly displayed the photos on his Instagram as a symbol of his apparent resilience. If Beckham wanted to use the photos for personal gain, Splash contends, he should have paid market rate for them like the rest of the media. It is unclear whether the photographer violated New Jersey privacy laws by snapping the picture through the bars of Beckham’s gate with a telephoto lens, but certainly this is not the first time a photographer has captured a celebrity while on the edge of that person’s property.
The “Big Picture”
Beckham’s case represents one of many areas where copyright struggles to keep up with technology. While paparazzi photographs are nothing new, every celebrity can now become his or her own media outlet through Instagram, Twitter, Snapchat, and more, publishing content for fans with the click of a button. With every click comes the potential for $150,000 in statutory damages for copyright infringement. This type of infringement happens constantly on the internet and usually goes unchallenged, but when the culprit is a celebrity with deep pockets, the rights holder may suddenly be interested in legal action.
Beckham, and any others who follow his lead, have an uphill battle denying copyright liability in photo-sharing cases. But his creative arguments and sympathetic position result in a case that is worth keeping an eye on.