Attorney David Clark on the Conflict of Copyright Law and Social Media

October 3, 2022  | By McCathern Law

When Copyright Law and Social Media Conflict:
Posting a photo of yourself to Instagram may be an infringement

Miley Cyrus recently stumbled into a legal quagmire after posting a photo to her Instagram account. Unbeknownst to her – and many other Instagram-popular celebrities – sometimes you do not have the right to post a picture of yourself to your own social media accounts. United States copyright law dictates that the “author” of a work is the initial owner. For photographers, this means they typically own the copyright in photographs they capture, including photos of other people. Among the rights that belong exclusively to a copyright owner are the rights to “reproduce” the copyrighted work and to “distribute copies” of the work to the public.

Despite simply publishing a picture of herself, Miley potentially violated a photographer’s exclusive rights in the copyright in that photo. She joins a list of other celebrities who have inadvertently run afoul of this particular quirk of the law, including Gigi Hadid, Dua Lipa, Jennifer Lopez, Emily Ratajkowski, and Khloe Kardashian, among many others. While female celebrities are disproportionately targeted by these litigious photographers, Deshaun Watson’s first public brush with the law was for re-posting and sharing pre-game photos of himself to his Instagram account without authorization.

Without first acquiring a license or obtaining the underlying copyright through an assignment from the photographer, an unauthorized publication of a photo – even a photo of yourself – is likely copyright infringement. For celebrities and celebrity photographers, this can be big business. From the photographer’s perspective, this is their livelihood. Capturing a unique image of a celebrity can be a career-maker. Meanwhile, allowing a celebrity to undermine the commercial value of that photograph by casually posting it to their high-profile social media accounts (without any compensation to the photographer) certainly undermines the incentives that copyright law exists to protect.

Without copyright incentives, artists would be limited in their ability to create new works.

Your initial reaction might be to say that these are celebrities and the law treats them differently. However, this conflict in social media interests and legal rights can affect anyone. By posting one single copyrighted photo to your Instagram account without authorization, you may be exposed for what is known as “statutory damages.” Under U.S. law, particularly 17 U.S.C. § 504(c), statutory damages for the infringement of a copyrighted work begin at $750 and can be up to $30,000 per picture. That is an expensive post if you do not have hundreds of thousands of followers and advertising revenue to offset legal bills. The Copyright Act allows the court to reduce the penalty to $200, but that requires a comprehensive factual investigation and a finding that you did not willfully infringe the copyright – which is an even more expensive process that will likely far exceed the original $750 minimum. Ask those Napster users who caught the ire of record companies in the early 2000s how that worked out financially. Almost all of them settled out of court.

This is where I provide you some good news: that random photo your friend took of you at the party you attended last week – you know, the one you shared across all of your social media platforms? That photograph is copyrighted and technically owned by your friend, yes, but it is unlikely your friend made the effort to register that photograph with the U.S. Copyright Office. Without a valid certificate of registration, your friend cannot file a lawsuit against you for copyright infringement. You have the Supreme Court to thank for that. As a result, in nearly all instances, you are unlikely to face a lawsuit. Unfortunately, it appears Miley Cyrus was not so fortunate.