Nicki Minaj has posted an array of paparazzi images to her Instagram over the past few years, and at least seven of them have landed her in a newly-initiated legal battle with Splash News. According to a lawsuit filed late last week by the paparazzi photo agency in a California federal court, Onika Tanya Maraj – the “rapper, singer, songwriter, actress, businesswoman, and entrepreneur” professionally known as Nicki Minaj – posted seven Splash News images on her Instagram account without obtaining permission from the photo agency or paying a licensing fee, thereby, giving rise to copyright infringement claims.
Splash News asserts in its suit that Minaj “copied” seven different photos – including ones depicting her “in a multi-colored Oscar De La Renta gown outside of the Harper’s Bazaar Party in New York City,” “in a plaid Burberry outfit in New York City,” “at a NYFW party in New York,” and in “a cheetah print outfit” – which appear to have been licensed to and taken from the Daily Mail – and “distributed them” for display to her 91 million Instagram followers.
The well-known photo agency claims that the photos at issue “are creative, distinctive, and valuable,” and because of Minaj’s “celebrity status, [as well as] the photographs’ quality and visual appeal,” Splash News and the photographer it represents “stood to gain revenue from licensing” them. However, Minaj’s unauthorized use of the photos “made them immediately available to [her] 91 million followers and others, consumers of entertainment news … who would otherwise be interested in viewing licensed versions of the photographs in the magazines and newspapers that are [Splash News’] customers.” As a result, Minaj directly impaired “the existing and future market for the original photos.”
In what appears to be an attempt to proactively shut down a fair use claim by Minaj (à la the one that supermodel Gigi Hadid made in response to a similar lawsuit that she is currently facing), Splash News asserts that the star’s “unauthorized use is expressly commercial in nature,” a factor that weighs against a finding of fair use. “Minaj uses her Instagram feed for the purpose of promotion—specifically, to promote her business interests, products, and ventures; to promote and sell the products and services of others,” the agency claims. More than that, she uses it “to maintain and increase her visibility and desirability as an endorser, actress, model, and entertainment personality; and to promote her persona and celebrity status.”
“In short,” Splash News asserts, “every one of Minaj’s Instagram posts is fundamentally promoting something to her 91 million followers.”
With that in mind, the agency asserts claims of copyright infringement, and is seeking damages of “of up to $150,000 per infringement.”
How is it that Splash News has a copyright claim against Minaj, the individual in the photos? Well, in the U.S., copyright law – which protects “original works of authorship fixed in any tangible medium of expression,” such as photographs – prohibits unauthorized uses of those original, creative works by anyone other than the copyright holder. The copyright holder is the “author” of the creative work, unless the copyright to assigned to a third party. As such, the holder of the copyright for a photo is the photographer who took it, regardless of who appears in the photo and regardless of whether the subject consented to the photo or not.
Copyright law in the U.S. grants certain exclusive rights to the owner of a copyright in a work. These include: the right to reproduce the copyrighted work; the right to prepare derivative works based upon the work; the right to distribute copies of the work to the public; the right to perform the copyrighted work publicly; and the right to display the copyrighted work publicly.
With such rights in mind, infringement comes about when a party other than the copyright holder makes use of the photo (in a way that would not be deemed fair in accordance with the statutory fair use factors, of course), even if the person making use of the photo is the one in it.
*The case is Splash News and Picture Agency, LLC v. Maraj et al, 2:19-cv-05822 (C.D.Cal).
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