Photographer sues Bruno Mars for posting childhood photo of himself on Instagram

Discussion in 'photography, graphics & art' started by editor, Nov 28, 2017.

  1. editor

    editor Taffus Maximus

    Here's an interesting copyright conundrum that has polarised photographers on DPReview:

    Lots of debate in the comments -
    Photographer sues Bruno Mars for posting childhood photo of himself on Instagram
  2. mhendo

    mhendo Aussie in San Diego

    I'm not sure it's a copyright conundrum at all. Under US copyright law, at least, I don't think that Bruno Mars has a leg to stand on. Some of the comments on the DPReview thread are incredibly ignorant about how copyright law works in the United States, and also about the more general principles involved.

    Unless she has signed it over to someone else, the photographer holds copyright in that image. McGann is a professional photographer, and I would be almost 100 percent certain that she registers her images with the US Copyright Office, which allows her to claim not only actual but statutory damages in any lawsuit. The copyright issue here is about as clear as it could possibly be.

    Many of the comments in the DPReview thread seem to be accusing her of profiteering, or of making a money grab because Mars in famous. Well, yes, but isn't that precisely the point of being a professional photographer? That you make money from your work, and that someone else doesn't just get to take it because they like the picture that you took? The very fact that Mars is famous is precisely what gives her picture a considerable amount of its value. She was there in Memphis to take the photo 28 years ago, and the fact that it was a long time ago, and Mars has become much more famous since then, doesn't change the fact that it's her image.

    I wonder if, in 20 years, Bruno Mars will be willing to forego royalties from the sale of his music, and simply allow anyone to distribute it for free? I wonder if his label, Warner Music, has ever gone after file-sharers and other acts of copyright infringement? If Mars has any sense of the law, and any sense of principle when it comes to a person's right to their own creative work, he will take down the image and pay up.

    I say all of this as someone who quite likes Bruno Mars. He seems like a decent person, and while I'm not really into much of his music, he certainly has a great voice as is a talented entertainer. But he gets paid very well for doing all of that, and Catherine McGann also has the right to be paid for her creative work.
    Vintage Paw, danski, Crispy and 3 others like this.
  3. ska invita

    ska invita back on the other side

    why was the pic taken and how has Bruno profited from it by posting it online?
  4. mhendo

    mhendo Aussie in San Diego

    I don't know, and I don't know.

    But, under U.S. law at least, neither answer is relevant to the question of whether he has violated her copyright by posting the image without permission.
  5. ska invita

    ska invita back on the other side

    would Bruno have been given a print at the time? Posting a pic on Instagram isn't a situation you profit from, and if he had a print it's as much his image to show as the photographers
  6. mhendo

    mhendo Aussie in San Diego

    Again, the question of whether he has profited by posting it on Instagram is irrelevant, and giving someone a print does NOT, under US law, also include a transfer of copyright. We can debate about the moral questions all you like, and you're perfectly entitled to believe that he should be allowed to use the image, but the legal issues in this case seem, to me, to be crystal clear.
    muscovyduck likes this.
  7. ska invita

    ska invita back on the other side

    the lawsuit seeks any and all profits made from the image's use, plus damages.

    the law suit is based on profits. There are no profits. Also how is it damaging?
  8. weltweit

    weltweit Well-Known Member

    How does that work that in America you have to register images to be able to claim copyright? How do you do it? how long does it take? does it cost money? What a palaver!
  9. editor

    editor Taffus Maximus

    Given that it's not a very good photograph, I wonder if the photographer was a friend of the family at the time.

    It's a tricky case but I think there could have been better ways for her to resolve the issue.
    muscovyduck and ska invita like this.
  10. ska invita

    ska invita back on the other side

    this aspect of it seems relevant, if the picture was taken FOR the family and for free, and they were given a print, then surely they can share it for a noncommercial use.

    if it went on the cover of an album that's something else, but there's no financial gain here that i can see.
  11. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral.

    The question of profit is the only relevant thing.

    Once copyright has been established legally, then the photographer needs to substantiate their claim for a share of the profit. In the UK, Copyright is automatically granted - there is no need to register. Registering Copyright in The States simply reinforces your argument in the case of any future legal wrangles.

    The only reason this photograph has any profit making potential is the subject - the subject being Bruno. It is his image, his story, his work which has made the image a commercial proposition. If he has not signed a model release, he wins.

    That is the legal standing to be contested.

    Ethically, is it really fare to expect to profit from a photograph snapped of an innocent, young child?

    Fuck her. That's what I say.
    Throbbing Angel likes this.
  12. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral.

    Oh. It is also very good publicity for all concerned of course.
  13. mhendo

    mhendo Aussie in San Diego

    Well, I'd be interested to see the actual lawsuit, and the wording, but there's a variety of issues at play here.

    The profits part might relate to an argument about his Instagram feed being a part of his overall commercial identity, contributing to his publicity, and helping to sell his music. He certainly uses it that way, posting updates to his music and links to his songs and albums.

    Also, the damages part refers to the part of copyright law that addresses that way that copying someone's work without permission can have a damaging impact on the market for that work. This photo is clearly one that lots of people like. It currently has 1.25 million "likes" on Mars' Instagram feed.

    But the fact that he has made that image available, for free, to anyone who wants it, clearly affects the market for the image. Who would bother buying the picture from Catherine McGann, now that they can get it for free from Bruno Mars? This is, in fact, one of the central things that US copyright law considers when evaluating issues such as copyright infringement and fair use. One of the specific criteria for evaluating fair use, for example, is "the effect of the use upon the potential market for or value of the copyrighted work." (Title 17, Chapter 107).

    Furthermore, if the photographer has registered her image with the Copyright Office, she doesn't even need to demonstrate actual losses. She can sue for statutory damages and attorneys' fees. If she had not registered the image, she could sue only for actual damages and lost profits.

    Also, copyright violation in the United States is strict liability. That means that there's no "But I didn't know I wasn't allowed to use it" defense. If you publish a work without authorization, and if someone else can show that you did this, and that they own the copyright (something that is easily established if you registered the work), then you're screwed.

    This was demonstrated in a case a few years back, when a photographer's images were grabbed from his Twitpic account and distributed by Agence France-Presse and Getty Images to various of their newspaper and online clients. The clients themselves (including the NY Times, Washington Post, ABC, and CBS) didn't know that the agencies were distributing the pictures without authorization, but the strict liability rule means that they were responsible for their actions in posting copyright images. They settled, because they knew they were screwed, and the two photo agencies were hit for over $1 million in the court case.

    No, as I explained above, you can claim copyright without registration. What registration allows you to do is seek greater damages, above and beyond actual losses. It also provides a traceable record that makes it easier to establish your ownership of copyright.

    If you don't register, your copyright still exists, and gives you about the same level of protection as UK copyright law.
    ska invita likes this.
  14. mhendo

    mhendo Aussie in San Diego

    As in previous discussions of copyright, especially as it pertains to the United States, all you are demonstrating here is your pigheaded ignorance on the matter.

    The model release issue is irrelevant to this case. In the United States, a model release is not required for journalistic or editorial uses of a photograph. It is only required if the photo is used in some form of promotional endeavor, and under copyright law this is defined quite narrowly as being areas related to promotion of a product or a service or an organization. So, the photographer can publish this picture in Rolling Stone in a story about Bruno Mars, or in the New York Times in a story about Memphis, and she needs no model release. If she wanted to sell it for use in a car commercial, or a nappy advertisement, or a promotional leaflet for a child care service, she would need a model release.

    And the issue of a model release is COMPLETELY IRRELEVANT to the question of whether someone else, who is not the copyright holder, can use the photo without permission from the photographer.

    You would embarrass yourself less in copyright discussions if you actually learned a bit about the topic before pulling on your clodhoppers and stomping all over the place with your clumsy feet.
    ViolentPanda likes this.
  15. weltweit

    weltweit Well-Known Member

    I just don't get how American photographers can register an image for enhanced copyright. Do they have to send in a print, a negative, a digital raw file, what is the mechanism they use to register an image?
  16. scifisam

    scifisam feck! arse! girls! drink!

    What about that arsehole, Richard Prince, who gets away with stealing other people's instagram pictures and selling them for a fortune? His justification is that he "changes" the photo by putting a caption on it. Seems to me that applies to Bruno Mars too and practically anyone sharing a photo and adding a caption.
  17. editor

    editor Taffus Maximus

    Pretty much agree with you there.
    Sasaferrato likes this.
  18. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral.

    Oooops! Stepped on someone's toes and they shot themselves in the foot.

    Your argument is fundamentally flawed. You argue that the model release is only relevant to promotional work, then argue that the photographer should profit from the Copyright, because the work is being used to promote music.

    Call me pig ignorant about these things if you like. I used to work professionally in the field of advertising and photography in The States, Europe, and the UK. It was my job to know this stuff at a fairly high level.
  19. mhendo

    mhendo Aussie in San Diego

    I believe that, in the modern era, you send in a digital image. You can also, as a photographer, register groups or collections all in one go. You don't have to go through a separate registration for each image. I've never actually done it myself.

    Note, also, that you need to register within three months of publication to be allowed to seek statutory damages. It's not about when the photo was taken, but when you publish it. So, if you have 100 great pictures of a Sex Pistols concert from 1980 in your filing cabinet, and decide that you want to publish them on your website, you can publish them and file a copyright registration either before publication, or within three months, and you will retain full rights to sue for actual damages, as well as statutory damages and lawyers' fees.
  20. mhendo

    mhendo Aussie in San Diego

    I will call you ignorant because you are.

    Firstly, as I made clear, US law has quite narrow requirement for what constitutes promotional use (the term they generally use is "commercial use") and the need for model releases. The uses that the photographer (and copyright holder) has made of her image in this case do not require a release.

    Secondly, and more importantly for this case, the model release issue relates to uses made by the copyright holder and anyone s/he allows to use the image. It is irrelevant in a case like this, whether the subject of the image is also the person who has appropriate the image without permission.Model releases and copyright are not the same thing.

    The Art Law Journal has a decent explanation of how model releases work, and what they are (and are not) required for:
    I'm pretty sure I posted this link in a previous discussion with you, where you also demonstrated a lack of understanding.
    I can't imagine you were very good at your job; at least, not the part of it that involved understanding the actual issues.
  21. mhendo

    mhendo Aussie in San Diego

    But why?

    That "innocent young child" is now a multi-millionaire who thinks that the image is good enough to use on his own website. As I asked earlier, do you think he would be happy with people nicking his intellectual property rather than paying him for it?

    This woman has been a professional photographer since 1986, so this was her job. Here's another photo, on her own website, that appears to be part of the same photo shoot. If Mars had wanted to use her picture, he probably could have gotten permission from her for $500 or $1000.
  22. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral.



    I think the first paragraph makes it perfectly clear. You are arguing that Copyright has been breached because the subject used the photograph for promotional purposes without permission. Therefore, the photographer is claiming on these grounds without a model release from the model. She can't win here.
  23. editor

    editor Taffus Maximus

    It's all horribly opportunistic.
  24. mhendo

    mhendo Aussie in San Diego

    Well, the question is, Will he get away with it?

    Just a few months ago, a judge rejected Prince's call to dismiss the case against him. Prince has generally argued that his works are transformative, changing the original image substantially and essentially creating a new artwork that is not the same as the original. In some of his previous cases, he has managed to prevail, but in this case he might be in more trouble, because he didn't change the photo itself, but, as you note, just added some words to it. As the judge in this case noted, when he allowed the case to go forward:
    I don't know if the case has resumed yet. The wheels of justice often move slowly. This was the most recent news I could find.
  25. scifisam

    scifisam feck! arse! girls! drink!

    He's certainly got away with it before though, hasn't he? If he gets away with it this time then I really can't see any reason for Mars to have to pay either. It basically means that, in the US, copyright for photography is dead.
  26. mhendo

    mhendo Aussie in San Diego

    Wrong. Again. Don't you ever get tired of it?

    I am not arguing that copyright was breached because the subject used the photograph for promotional purposes without permission. I am arguing that copyright was breached because the subject used the photograph without permission. It doesn't really matter what purpose he used it for. He published it on his site without permission from the copyright holder. As I said, copyright violation in the US is strict liability. If the photographer can show that the photo is hers, that she holds the copyright, and that he did not have permission from her to publish it, the ballgame is over.
  27. mhendo

    mhendo Aussie in San Diego

    I tend to agree, and I thought that some of the previous decisions in Prince's favor were borderline. The problem with the issue of "transformative use" is that it comes down to some very subjective judgments. In the previous cases, though, he DID at least make actual changes to the photograph itself, adding content and blending images. Here, all he has done, as you note, is add a caption. I suspect, and hope, that the court finds this to be insufficiently transformative to be considered Fair Use.
  28. scifisam

    scifisam feck! arse! girls! drink!

    I'm fairly sure that at least some of the previous photos were merely cropped and captioned.
  29. mhendo

    mhendo Aussie in San Diego

    Is that right? That would be a shame.

    The ones I've seen—or, at least, the ones I've seen that were directly associated with lawsuits—all had more substantial alterations. If simply captioning an image is enough to qualify as a transformative use, then you're right: copyright for photos is effectively dead.
  30. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral.

    What is 'the ballgame'?

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