Category Archives: Photography

Kim Kardashian is being sued for posting unlicensed photo of herself and husband Kanye West on Instagram

2020 is barely one month old and in the news we learn that Kim Kardashian is being sued by professional photographer Saeed Borden for copyright infringement.  In a complaint filed on Jan 22, 2020 in the Eastern District Court New York, the plaintiff alleges that on June 14, 2018 at an album listening party in Queens New York for rap artist Nas’ album ‘Nasir’ which was produced by Kanye West, he photographed Kim Kardashian and her husband Kanye West; and subsequently licensed the image to news media outlets.  Neither Kardashian nor SKIMS BODY, Inc her company were “licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the photograph.” 

However, in October 2018, the defendant posted the image to her Instagram account without seeking prior permission or authorisation.  By doing so, Kim Kardashian engaged in “willful, intentional, and purposeful [copyright infringement], in disregard of and indifference” to the photographer’s ownership rights (s201 Copyright Act 1976 – USA).  As a result, he is seeking monetary damages, including “the profits, gains or advantages of any kind attributable to the infringement of his photograph.” 

This case echo two suits filed in 2019 by pop musicians Justin Bieber and Ariana Grande for posting images of themselves on social media without authorisation or license from the photographers or their agencies.  Both of those cases were settled out of court with Ariana Grande reportedly paying $50,000 to settle.  It remains to be seen whether Kim Kardashian will cave in and do the same.



Saeed Bolden v. SKIMS BODY, INC. and KIM KARDASHIAN, 2:20-cv-00365 (EDNY)


Digital Single Market Directive 2017/790 will not be implemented

In reply to the question what plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law; the Secretary of State for Business, Energy and Industrial Strategy responded that ‘the United Kingdom will not be required to implement the Directive and the government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process’.

Recalling a report published in December 2019 into online copyright infringement and the value gap, BAPLA – the British Association of Picture Libraries and Agencies – concluded that in the past 10 years, its members had suffered a significant loss in income through copyright infringement attributed to unauthorised and unlicensed images on social media and whose members wholly endorsed the proposals in Article 17 of the DSM Directive 2017/790.

Article 17 contains provisions, inter alia, for online content-sharing providers to obtain authorisation form rights holders by concluding a licence agreement with strict liability for unauthorised acts by the providers when communicating and making available to the public copyright-protected works.  Also included is a requirement for providers to act expeditiously in taking down and removing infringing works when brought to their attention by rights holders.

The expectation of the report was that implementation of Article 17 would have played a crucial role in restricting the distribution of unauthorised content.



Duration of Copyright & the Publication Right

1st January 2020 marks the end of copyright term for artistic works i.e. photographs, of authors who passed away in 1949 i.e. 70 years from the end of the calendar year in which the author dies. Conversely under current legislation, 01 January 2090, will mark the end of copyright for authors who have passed away in 2019.  At which point, the author’s works will be deemed to have passed into the ‘public domain’.

What is the ‘public domain’.  It is not a physical terrain or a cloud store of aggregated works.  It can be defined as: 1) works out of copyright for which no permission is required to use or commercially exploit; 2) works which do not qualify for protection e.g. ideas, facts, folklore, etc; and 3) works permitted for open use under a creative commons or general public licence. The works are free for the public to use and exploit without requiring permission to do so.

However, one lesser known right equivalent to copyright, a ‘publication right’, resides in unpublished works out of copyright.  The publication right is automatically vested in any person or entity who after the expiry of the copyright term, publishes a previously unpublished ‘public domain’ work for the first time i.e. artistic works in which the copyright has lapsed.

The publication right lasts for 25 years from the end of the year in which the work was first published and cannot be extended.  The qualifying criteria is the work must be first published in the EU/EEA and the publisher must be a national/entity of an EU/EEA country.  No account is taken of any unauthorised act or publication before the work enters the public domain.

In the case of an artistic work, ‘publication’ means the issue of copies to the public and also making it available to the public by means of an electronic retrieval system. Hence the act of making available online or communicating to the public a previously unpublished artistic work in which the copyright has lapsed will grant the publisher a ‘publication right’ for a further 25 years from the date of publication.

Directive 2006/116/EC – Article 4
Copyright and the Value of the Public Domain’ – IPO Jan 2015.

BAPLA: Online Copyright Infringement Report

In December 2019, BAPLA – The British Association of Picture Libraries & Agencies, published their report “Research Into Online Copyright Infringement – Assessing The Value Gap”.  The report was undertaken to highlight concern and answer the question “To what extent has copyright infringement online affected BAPLA members, thereby creating a ‘value gap’, and have social media platforms exacerbated the situation?”

BAPLA represents over 130 members in the UK and worldwide, ranging from some of the largest picture libraries to those run by rights holders and sole traders as well as cultural heritage archives and news agencies. The report is based on a cross section of its members and looks at the present market size, the extent and cost of online infringement, and the impact of social media.

The Present Market Size
The response to the survey by 107 members put estimates of market size at 274 million images for the UK and 17 million images for the rest of the world – slightly under 300 million images – with a total turnover of £12M in the UK and £16M from the rest of the wold.  Significantly, 62% of members based in the UK, had a turnover of less than £100,000; with 22% of UK members exceeding £500,000 and above.  The report therefore highlights the ‘value gap’ in the level of income for picture libraries and agencies compared with the level of income generated by online content sharing service providers (OCSSP).

The Extent and Cost of Online Copyright Infringement
75% of respondents stated that online infringement had increased over the last 10 years, whilst 22% stated that it had stayed the same, and 1% stated that it had decreased. The supporting evidence was image tracking technology revealing increased online infringement on social media sites, in particular Facebook and Instagram; the number of infringement notices being sent out; and the general public at large believing that images online are free to use.  73% of respondents also said that they actively pursue infringement by the use of copyright infringement services, court action, take down notices and commercial settlement.  However, these methods were fairly ineffective when dealing with infringements outside of Europe and the USA e.g. Russia and China; and loss of revenue reported overall by respondents was an average of 25% of licensing income; further emphasising the ‘value gap’.

The Impact of Social Media
There was a recognition among members that licensing conditions had changed to permit use of images on social media; 54% for and 46% against; concluding that use on social media for commercial purposes had an enormous impact on the image sector. In response to the question which social media platform most infringed content, the results confirmed that Pinterest had the largest number of infringing images (50%) with Tumblr the least (60%); and the majority of members finding that reporting infringements on social media, ‘highly difficult’.

When asked if they were aware of recently passed (April 2019) Article 17 of the Digital Single Market Directive and that if adopted into UK law, OCSSPs will require a licence from rights holders to display copyright protected images to the public; the response was 68% knew about Article 17 and 100% fully endorsed it becoming law.

The report concluded that ‘[w]hile the internet has opened up many online opportunities … it equally impedes controlling the illegal use of images that would otherwise be licensed’; and conclusively provides evidence that a ‘value gap’ does exist on a large scale for BAPLA members.




2019 Highlights

Mar 2019: Ariana Grande strikes back at ‘greedy’ photographers with Full Copyright grab agreement for photographers accredited to photographer her on her current concert tour.

May 2019: Singer Ariana Grande sued for posting photos of herself on Instagram

Jul 2019:  The Andy Warhol Foundation for the Visual Arts Inc vs Lynn Goldsmith. The Andy Warhol estate counter-sues after being sued by photographer Lynn Goldsmith over her photograph of the recording artist Prince was used as the source image for a series of silk-screen prints by the late artist Andy Warhol. An interesting result on a derivative work from a photograph.

 Aug 2019: In the USA, photographer Jill Greenberg settles out of court, her claim for copyright infringement against advertising company Clorox for using the licensed images over and above what was originally agreed in the contract for the shoot.

Oct 2019: Justin Bieber Settles a Copyright Infringement Lawsuit Over using a Picture of Himself used on Instagram.

Nov 2019: Celebrated USA Photographer Harold Davis files suit against Pinterest Inc in San Francisco USA alleging that Pinterest wilfully violates his copyright and should not be protected under the Digital Millennium Copyright Act (DMCA) safe harbour provisions.  Pinterest is the website where users can ‘pin’ images copied from other social media websites to their own personal collection of images.

Dec 2019: Hilton Hotel in Instagram Photo Rights Grab