Fame and photography: the two go hand in hand. Celebrities and the press, more specifically, paparazzi, have always maintained a mutually beneficial—if often unpleasant—relationship. But the rise of social media has given celebrities more control over their image and dented the once prosperous paparazzi industry. Celebrities often share images of themselves taken by the paparazzi on their own social media accounts without licensing the photos from the photographers—who have long been recognized as the rightful authors of a photograph under federal copyright law. In the last few years, paparazzi photographers have begun to file copyright infringement claims against celebrities, fashion designers, and public relations firms for sharing unlicensed images on social media. Most of these cases have settled out of court, but celebrities, backed by the public, are starting to fight back.
This Note proposes a modified interpretation of joint work under the Copyright Act of 1976 that would let a photographer retain the exclusive rights to own and transfer her photography while also granting celebrities a right to use the images on social media. This modified application of co-authorship draws inspiration from the incidental use doctrine recognized in the right to publicity.
Strict interpretations of authorship traditionally implemented in copyright law do not always make sense in the digital space. Every day, millions of unlicensed images are uploaded, shared, and re-shared on social media platforms. A modified view of joint work applied to celebrity-paparazzi cases could begin to bridge the vast chasm between the realities of twenty-first century communication and the ideals of copyright protection.