When posting to Instagram, most people don’t think twice about copyright. That’s certainly true for Khloe Kardashian, the fourth most popular Kardashian sister if Instagram is the barometer. Khloe recently got served with a copyright infringement lawsuit for the seemingly innocent act of posting a photo of herself on the service.
Perhaps you’re wondering, “Can I really get sued for posting pictures of myself?” The answer is “Yes, it’s possible.” But before you rush and delete all your car and gym selfies, let us explain how Khloe allegedly violated three parts of the U.S. Copyright Act so you can avoid making the same mistakes.
The photo in question is a typical paparazzi shot of Khloe and one of her sisters walking into a posh Miami eatery. It was taken by photographer Manuel Muñoz and licensed by his agency, Xposure Photos, to The Daily Mail for this riveting article about Kourtney Kardashian wearing a lingerie-style slip dress.
In the lawsuit, Khloe is accused of removing the little copyright notice from the corner of the image and sharing the photo with her millions of followers without permission.
It’s not every day we get to use the Kardashians as an example to educate the public on copyright law – and the lesson here, in a nutshell, is that you can’t remove the little copyright notice! Cropping out a copyright credit from a photo doesn’t magically remove the copyright — just like tearing off the Surgeon General’s warning on a pack of cigarettes doesn’t reduce your risk of getting lung cancer.
And look, it’s easy to understand why Khloe might have thought it was ok. It’s a picture of her, after all. But just because you’re in the photo does not mean you own the photo or have permission to post it. The person who found the photographic opportunity and composed the shot and whose finger pressed down on the camera’s shutter button is the rightful owner of the photo — and, in this case, that person is Mr. Muñoz.
Muñoz makes a living as a photographer, and, like millions of others, his copyright enables him to protect his work. He probably didn’t wake up and say, “I want to sacrifice an evening with family and friends to stalk the Kardashians for fun.” Standing outside celebrity hot spots, snapping images that an audience wants to see, and licensing those photos is a real job that pays the bills. By sharing the photo with her 70 million followers without Munoz’s permission, Khloe is hurting his ability to sell the image elsewhere.
The whole issue could have been avoided if Khloe asked Muñoz for permission to post. She probably would have been charged a licensing fee, but that pales in comparison to the $25,000 worth of damages she faces if she is found liable for violating three parts of the Copyright Act: the right of reproduction (§106(1)), the right to publicly display a pictorial work (§106(5)), and removal of copyright management information (§1202(b)).
The right of reproduction is pretty much the crux of what it means to hold a copyright, meaning no one other than the copyright owner (or someone who’s been licensed to do so) is allowed to reproduce or make any copies of the work. What would be the point of creating anything if people can just copy it and distribute it?
The right to publicly display a pictorial work allows the copyright owner to control how their work is shown. Muñoz’s right was violated when Khloe took his picture without permission and shared it with her followers.
Finally, the removal of copyright management information, like cropping out a copyright notice from the bottom of an image, is just not smart. That notice basically means, “Hey, I belong to someone.” Why would you think you could just remove it without anyone noticing?
The Kardashians put a lot of value on their own intellectual property. This is a case where one of them didn’t put value on the intellectual property of someone else. Big mistake.
When sharing photos online that you did not take yourself, make sure you have the photographer’s permission. Your friend might not care if you upload one of her heart-shaped foam latté pics without photo credentials, but your friend’s wedding photographer certainly will if you screenshot and post one of her watermarked images. When in doubt, ask the photographer for permission, and always give credit where credit is due.
If more teachers knew how to find digital citizenship resources, they could help young students like Khloe understand their rights and responsibilities as 21st century creators and consumers.