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

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

  1. mhendo

    mhendo Aussie in San Diego

    Some interesting developments.

    First, the image is now gone from Instagram and Mars' other social media sites. This suggests, at the very least, that Mars and Warner music are taking the lawsuit seriously.

    Second, I've manged to find a copy of the case filing. You can get it here (PDF). A few interesting observations from the lawsuit.

    As I suspected, the photograph is indeed registered with the United States Copyright Office, with registration number VA 2-067-037. I looked up the registration at the US Copyright Office website, and it appears that she registered a group of Bruno Mars images in 2011, including this one.

    The suit not only names Warner Music as a defendant, but asserts that "at all times material hereto, Warner has operated the Mars Websites with Mars." That is, the suit claims that this isn't simply some guy's private Instagram account, but is effectively a commercial enterprise co-operated by his record label with the explicit intent of promoting Bruno Mars commercially and artistically. I would be very surprised if Bruno Mars spends much time running his own Instagram account, and if this suit finds out that Mars' Instagram site was usually updated by Warner Music employees, that's going to look pretty bad for the defendants in this case.

    The final thing that interested me is that, while she could seek statutory damages in this case (because the image is registered), she is not seeking statutory damages. She has decided to ask for "actual damages and Defendant’s profits, gains or advantages of any kind attributable to Defendant’s infringement of Plaintiff’s Photograph."

    I'm not exactly sure how actual damages and profits would be calculated in a case like this. At the very least, in calculating damages, the court would consider how much money the photographer might have earned from licensing a photo to Bruno Mars and Warner Music for promotional purposes, especially when that image has been liked online by well over 1 million people, and undoubtedly viewed by millions more.

    The lawsuit calls for a jury trial, but I will admit right here and now that I will be absolutely amazed if it ever gets to court. My money, right now, is on Mars and Warner reaching some sort of settlement with the photographer. I hope I'm wrong, because this would be quite an interesting case to follow. If it does go to court, I am almost certain that the plaintiff will prevail, although I couldn't even guess at what sort of financial settlement she would get.
  2. abe11825

    abe11825 Like to take a cement fix

    Personally (and quite honestly), I think it's disgusting that in the pdf mhendo brings up about the lawsuit, that all these "likes" were mentioned via various websites. This is part of the online / societal / cultural shift where every one wants a piece of the action and has to put something on every social network site they belong to. "We" have become so used to instantaneously 'sharing' something on our feeds, that we don't think about whatever ramifications will/would happen immediately following the post. Therefore, should people start suing others, lawsuits have to mention social network sites and how many "likes" the post received. When and why did we get to that point?

    McGann is obviously a celebrity photographer, having snapped photos of Iggy Pop and Marilyn Manson, among other club photos (I looked at just a few of the photos someone linked to). It seems that she's no amateur looking to make a quick buck on a photo from a few decades ago. Her portfolio is expansive and it's happenstance that a big music magazine was covering Mars and she had a photo of him from when he was a young'un. I wonder who reached out to whom, regarding the photo of baby Bruno.

    I think her personal social network sites have the photos as an online portfolio of what she's accomplished in ~30 years. Communication / print jobs these days want an online portfolio to see what you've done. I think she's just "keeping up with the times" and sharing her work with the world.

    I feel neither party is either truly innocent nor guilty. We don't really know how she was approached by Bruno to take the image... even after going to her site, the bottom has a disclaimer that she wishes to be contacted for use of a photo. It can be a "he said, she said" situation as well as "who knows what 'contract' was drawn up to use his image back in the day". If his parents signed a release form of any kind, surely she's got more of a leg to stand on, saying it's her image to use however she wants?

    In regards to altering images for any form of profiteering, I want to add that I've seen numerous "artists" do this. During the winter months here in Florida, there are art festivals in and around the city of Fort Myers. The "festivals" usually take place in the parking lots and adjacent side streets of convention centres. Sometimes they're in parks. But there are plenty of visual artists who take images and readjust them for "big money". My mum actually bought me a print called "A to Ziggy" last year, and it cost about $50 for an 11x14 print. The image is David Bowie's (lightning bolt) head photoshopped on a NASA astronaut's body. There are transparent stars coming out of the helmet he's holding and they float down to the ground. I'm sure it's searchable online. Trust me, it's nice looking, but I've found faults in the cleanup on it. Other artists I've seen, have images printed on metal in high gloss formats with deep solid colors. But the images are a mash of things - one guy had a photo of a major league baseball stadium as the background (with the city skyline), and each base was a Monopoly card. He had superimposed other small things in on it was well - images of toys and such. The smallest metal picture was ~$70 and it went up in price and size. Every time I go to these festivals I often wonder what form of copyright laws are these artists violating. Especially when the sculpture makers don't want you taking a photograph of their sculpture (because it's their property they are selling and don't want the image sent to anyone) but a photoshop artist is willing to put their stuff online to show the world what they've "created"... :confused:
  3. FridgeMagnet

    FridgeMagnet Administrator

    I agree with mhendo here - I don’t think Mars has any legal case here, with the assorted US legislation just giving you the right to (sometimes) block use of your image rather than ever giving you rights to use it yourself, and I imagine it will be quietly settled out of court with a fat cheque.

    Artists don’t have personal social media these days; this is a promotional tool, and as far as I’m concerned it should be treated just like if his label’s PR department decided to grab a random picture and not pay for it. Which of course labels do all the time, and need to be slammed every time for it. The obvious hypocrisy of the same companies being massively aggressive in pursuing supposed infringers of their own copyright hardly bears mentioning.
    Vintage Paw likes this.
  4. mhendo

    mhendo Aussie in San Diego

    I've tried to explain this on the first page, and I'll say it again here: none of this is relevant to the legal question of whether Mars and Warner Music violated her copyright.

    The issue of a subject approaching a photographer is irrelevant. If you take a picture of me on a public street, it doesn't even matter (in the legal sense) if I explicitly tell you that I don't want my photo taken (at least in the United States; a few other countries have slightly stricter laws on this). You own the photo, and you own the copyright. There are certain limits on what you can do with it, but as the subject of the photo, I have no claim to copyright, and no right to publish the image without permission.

    I doubt there was any contract at all for this photo, or the associated images. And that doesn't matter, when it comes to the issue of copyright. The only way that a contract might change the situation here is if she explicitly took the images as a Work For Hire, in which case the copyright might (depending on the content of the contract) fall to the commissioning party.

    And finally, the signing of a model release is also irrelevant. A signed model release gives the PHOTOGRAPHER broader opportunities for selling her image. If she has a signed model release, she can sell it for commercial uses such as promoting a product or service or organization. Without a release, she can't use a person's likeness for these types of commercial promotion. But the presence or absence of a release in no way changes the photographer's right to defend her image against unauthorized use by other parties, including the subject of the photo.
  5. littlebabyjesus

    littlebabyjesus one of Maxwell's demons

    It's not quite as simple as that. Image rights laws in the US can be interpreted very strictly and certain people are very litigious about it. Randomly, Buzz Aldrin is one - he has sued and won a huge figure over use of his image in books. The Picasso estate is another. If you're identifying a particular person in the photo and using that person's reputation to help the promotion of the image, which the photographer is clearly doing in this case, you are venturing into murky water. I assume she has a release form from his parents, otherwise he could conceivably counter-sue her for promoting her work with his image.

    The letter of the law, as interpreted in this strict Buzz Aldrin way, is not followed generally by the vast majority of people, but it potentially can be. It can be infuriatingly hard to work out exactly when you need to pay someone and when you don't. Luckily most people aren't like Buzz Aldrin.
  6. Gromit

    Gromit International Man of Misery

    Has Bruno signed over his image rights to her?

    If not he has, in my opinion, the right to do whatever the fuck he likes with his own image regardless of whoever captured it. (Don't care about the law this is my opinion of how it should be)

    The most the photographer should have is the right to also profit from it providing the necessary permissions have been obtained. Not to stop someone else from using their own image (regardless as to who has captured it).

    How much money does she think he made by posting it on twitter? Maybe 5 people bought an extra song off him worldwide as a direct result?
  7. FridgeMagnet

    FridgeMagnet Administrator

    The point is that while there are various ways you can restrict someone using a photo of you, there are no ways that you can claim rights to use the photo that they took of you.
    Vintage Paw and mhendo like this.
  8. FridgeMagnet

    FridgeMagnet Administrator

    ...this is not a thing.
  9. Gromit

    Gromit International Man of Misery

  10. ddraig

    ddraig dros ben llestri

    it's the USA you thick idiot cockwomble
  11. mhendo

    mhendo Aussie in San Diego

    You'll have to direct me to evidence of the "huge figure" that Buzz Aldrin has won over the use of his image in books.

    The only image-related lawsuit I'm aware of in Aldrin's case is the one he filed in 2010 against Topps trading card company. That lawsuit was thrown out of court, and after Aldrin appealed, he and the company reached an undisclosed settlement.

    It's worth noting that most intellectual property lawyers believe that, if Topps had not settled, and had chosen instead to fight the lawsuit, they would have won. Especially since the photo in question was taken by a government employee (an astronaut) on a mission sponsored and controlled by a government agency (NASA). Intellectual property produced by the United States government is, in almost all cases, NOT protected by copyright at all.

    Again, if you have a citation for a suit that Aldrin has won over the use of his image, I'd love to see it. I'm not saying you're wrong, but until I see some evidence, I'm dubious, at the very least.
  12. abe11825

    abe11825 Like to take a cement fix

    But.. aren't we all purely speculating what was said and what was done in order to have taken the photo in the first place (and then it's indefinite file sharing)? I feel like we're going around in circles right now, debating the legality of why the lawsuit is happening. All the sites linked to don't mention original details, except it just so happens Bruno's PR team popped it up on his social network feeds and McGann found it, got upset and is suing him / them.

    Outside of the photo allegedly being in Rolling Stone, who said either party is selling the photo / looking for investments (even if there's no money involved directly from the sale of the photo, only that it makes Mars one person / like more famous)? Who decided to put it in the magazine, anyway? I didn't see in any of the links posted, that Bruno is selling the photo at his concerts or as part of his CD package, nor did I see anything listed for an online shop on McGann's behalf.

    The other question is, what's the statute of limitations for the photographs? Does it fall under the 70 year ruling (or whatever it is) where you have X amount of years after someone's death before it becomes public domain? Then where does the alleged copyright fall?

    So... I guess it's fair to say... for all professional photographers out there... don't post any pictures online, of anyone at any time, because people can come back and repost your picture (even decades later)? Anyone can nick the image, take out the watermark (I've seen graphic designers do this, so I know it can be done), and then repost the picture as your own. Lesson learned: Unless you're looking to sue people for your image, don't post your pictures online. ...?
  13. mhendo

    mhendo Aussie in San Diego

    [Duplicate message - sorry]
    Last edited: Dec 3, 2017
  14. mhendo

    mhendo Aussie in San Diego

    You know why they don't mention the original circumstances under which the photo was taken? Because, for legal purposes, IT DOESN'T FUCKING MATTER. Unless the photographer explicitly signed over copyright to Bruno Mars, she holds the copyright. She made this very clear, also, when she took the trouble to register HER copyright with the US Copyright Office.

    If she holds the copyright, and someone else reproduces the image without her authorization, then they have violated her copyright. It is almost literally as simple as that. And because this sort of thing is a strict liability issue in the US, she doesn't even need to show that they did it with malice. The fact that they did it is enough for her to win her suit and collect damages.
    Again, while some of these questions MIGHT have some bearing on exactly how much money she could win in her claim for damages and profits, they have NO bearing on whether her intellectual property rights in the image were violated.
    The answer, in general, is that copyright for intellectual property like this provides exclusive rights for the term of the authors life PLUS 70 years. So McCann (and her heirs) will hold copyright in this image for 70 years after she's dead. And she's still alive, which we can tell from the fact that she's filing this lawsuit, so I feel comfortable suggesting that your question is, for the purposes of this case, completely irrelevant.
    And copyright protections are there precisely so that, if someone DOES nick your picture, you can sue them for doing it. Pretty simple, really.
  15. littlebabyjesus

    littlebabyjesus one of Maxwell's demons

    I was told that it was $2 million, but I can't find it. Topps wasn't the first case he'd taken to court - he'd filed against Disney before that. He is litigious, and over images of him on the Moon where you can't even see it's him.

    I'm not a lawyer, but I do clear image rights for books, including a lot of space images. You're right that all images taken by a US govt employee in the course of their duties are public domain. Hence certain books appear every now and then with certain Ansell Adams images in them but not others. Cheapskate AA books just use his US govt stuff. But that doesn't completely cover you for identifiable people. In the case of Aldrin, I wouldn't put him on the cover of a book, for instance, while an inside page with editorial justification is fine. As I understand it, image rights exist independently of copyright issues.

    The lines on this stuff are not as clear as they might be.

    Anyway, I actually agree with most of what you've said here - while they might be able to claim image rights, nobody has usage rights for an image just cos it's of them, either in the US or here.
  16. abe11825

    abe11825 Like to take a cement fix

    What's your problem, mhendo ? Why do you keep coming after people and saying everything they're talking about is irrelevant? People are trying to have a conversation about the issue and you're fighting every little thing that is being discussed. It seems like no one can make any type of statement without you being argumentative about it. I haven't found anything positive from this thread because you keep calling people names and saying their posts aren't true / they have no basis to comment. Who are you to say you're right and everyone else is wrong?

    Just curious, that's all.
  17. mhendo

    mhendo Aussie in San Diego

    Because it's a lawsuit, and legal issues often turn on fairly specific questions of what happened and when. Simply throwing out a whole bunch of questions or opining on what you think maybe should be the case doesn't really help the discussion. Issues relating to intellectual property and copyright happen to be something that I have considerable interest in, and that I spend a fair amount of effort to inform myself about. That includes reading court rulings, the US Copyright Office memoranda, and stories about intellectual property on websites like the Electronic Frontier Foundation.

    I'm not claiming that I'm always right. I've made mistakes before, and no doubt I'll make them again. But I try my best, especially in discussions where we're talking about fairly well-defined legal issues, to base my arguments on what the actual legal issues are, not on what I wish they were, or on what the law says in a completely different country, or on some story I read five years ago that turns out to be completely unrelated to this case.

    You said, in your post, that we're all "speculating what was said and what was done in order to have taken the photo in the first place." That might be true, but I can tell you that the exact circumstances under which this image was taken are going to be pretty much completely irrelevant if and when this case gets to court. The legal question of whether Bruno Mars and Warner Music violated her copyright basically requires the court to ascertain a few things:

    1. Did she take the photo?
    2. Does she hold copyright over the image?
    3. Has she registered the image with the US Copyright Office? (this constitutes prima facie evidence to support Question #2)
    4. Did Warner Music and/or Bruno Mars post her photo on the Bruno Mars social media sites?
    5. Did they have her permission to do this?

    If the answer to those questions are, respectively, Yes, Yes, Yes, Yes, and No, then that's pretty much it as far as copyright violation is concerned. The main discussion then will be exactly how much compensation she should get. In terms of reaching a legal conclusion about the violation of copyright, questions like:

    "Why were you in Memphis in 1990?"
    "Who were you working for at the time, or were you just on vacation?"
    "Why did you take that photo of Bruno Mars?"
    "Did he or his parents give you permission to take the picture?"

    are going to be essentially irrelevant to the case.

    About the only possible exception to this that I can think of is if the photos were a Work For Hire. And even then, US copyright law has a very narrow and specific definition of what qualifies as a work made for hire, in terms of who gets to claim ownership and copyright over the work. Photographers hired on an ad hoc basis to take some photos generally don't qualify. If you're interested, here's the specific definition of a work made for hire, under US law:
    This US Copyright Office Circular provides more explanation of when a work does and does not qualify.

    For example, if McCann had been a staff photographer for Rolling Stone magazine, and was in Memphis explicitly as a Rolling Stone employee in order to take photos for the magazine, then it would be possible (in fact, likely) that she was making a work for hire. But in that case, the owner of her images would not be Bruno Mars; it would be Rolling Stone magazine.

    Note also that part (1) of the work for hire definition requires you to be an actual employee. If McCann was an independent professional photographer, and was contracted by Rolling Stone to shoot some pictures for a single story, she would not qualify as an employee under part (1). We would then have to ask whether the work she did for them qualified as work for hire under part (2) of the law which, as you can see, is quite specific in delineating what types of work can be considered work for hire. And if it's not work for hire, then the creator owns the copyright. Period.

    If you think that the specific circumstances under which the picture was taken are relevant in forming your own opinion about what is right and wrong in this case, that's completely fine. But that's a very different question from whether those circumstances are relevant to the specific legal issues raised in the lawsuit.
  18. littlebabyjesus

    littlebabyjesus one of Maxwell's demons

    This last bit, though, to do with permissions, is relevant when she uses this photo to showcase her work. That's where his image rights potentially come in, and it would surely weaken her position if it were shown that she herself had been cavalier over his potential rights to the image.

    It's a pretty uneasy area imo, as there is undoubtedly exploitation by photographers. Dorothea Lange's famous 'Migrant Mother', for instance, which made Lange famous and did nothing for the woman whose name she didn't even ask. I don't care about this particular case either way, but many iconic images, by the very fact that they have become iconic images, exploit their subjects.
  19. Tankus

    Tankus living someone else's dream.

    Dunno about the ins and outs .....but I cant see this as a career enhancing move for the photographer..?.. would put me right off employing her if ever I was in a position too ....
  20. mhendo

    mhendo Aussie in San Diego

    Again, though, I'm afraid your memory of Buzz Aldrin's alleged $2 million payout is not going to be sufficient to convince me that you're correct about this, at least not when it comes to United States law. If this payout occurred, then there should be a record of it somewhere, and if the payout was essentially a behind-the-scenes settlement, then it doesn't necessarily tell us what the law is, or what the result would have been if the case went to trial. If this really is your area of work and professional expertise, and you're making claims about US law, then surely you can point me to some relevant cases that have been decided in US courts on the matter? Or even just what the law says on this issue?

    In the United States, the requirement for model releases or subject permission are fairly specific, and relate almost exclusively to the issue of using a person's likeness to promote a specific product or service or organization. Courts have defined this stricture quite narrowly, and I would be very surprised if any court had ever ruled against a photographer's use of a person's likeness to simply demonstrate the quality and scope of her work. By this definition, a photographer placing a portrait in a gallery would be vulnerable to a lawsuit for violating a person's image rights. I'll admit that much of this sort of stuff is a matter of interpretation, but I'd like to at least see some evidence of US cases where these sort of subject image rights have been litigated.

    I tend to agree with you that photographers sometimes exploit their subjects, and sometimes do so in ways that generate income for the photographers. Your migrant mother example is a good one. Steve McCurry's famous picture of the green-eyed Afghan girl for National Geographic is another. You could argue that a photographer taking pictures of arrests at a demonstration is exploiting both the police and the people being arrested for his or her own personal gain. But whether we like it or not, the law generally allows such exploitation, because it recognizes a broader public interest in editorial and journalistic practice.
    Last edited: Dec 3, 2017
  21. scifisam

    scifisam feck! arse! girls! drink!

    Dude, one of your questions is whether the 70 years after death rule for books applies here, despite this being a photo and nobody involved being dead. You're not coming across as terribly well informed.
  22. mhendo

    mhendo Aussie in San Diego


    I was wondering about this case this evening, so I went on the Public Access to Court Electoric Records (PACER) website to see if there had been any movement in the case.

    It seems that, just under a week ago, Bruno Mars and Warner Music reached some sort of settlement with McGann, and the case was terminated. I have attached a copy of the Order of Discontinuance to this post (hope it works; I've never attached a file before).

    The relevant section says:
    It does not say what the settlement was, and I'll bet that Mars, Warner, and McGann aren't going to say either.

    This is exactly the outcome that I predicted back in post #31 of this thread:

    Attached Files:

    BigTom, scifisam and editor like this.
  23. Sasaferrato

    Sasaferrato Thank fuck it's not over.

    Any photographs that I publish on this site may be regarded as public domain.

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