In a complaint filed Friday in Los Angeles federal court, photographer Robert Barbara claimed that Cyrus reposted his 2020 image – a snap of her waving to onlookers as she exited a building – without a license or any sort of permission to do so.
She’s the latest superstar to be hit with that kind of bizarre-sounding lawsuit. Over the last few years, Justin Bieber, Ariana Grande, Emily Ratajkowski, LeBron James, Katy Perry and others have all faced similar cases, accusing them of infringing copyrights by reposting images of themselves.
Barbara in particular has made a name for himself by filing such cases. He filed the earlier lawsuits against Grande and Bieber (both cases were eventually settled on confidential terms) and, earlier this summer, filed another one against Dua Lipa that’s still pending in court.
Unfortunately for Cyrus, such cases aren’t exactly meritless. While it might sound unfair to a celebrity who’s stalked by paparazzi, the copyright to a photo is almost always retained by the person who snapped it, and being featured in an image doesn’t grant someone a right to use it for free. If she actually reposted it without permission, she could be facing liability.
“The misunderstanding with celebrities [is] just because they’re the subject of a photo doesn’t mean they have any ownership rights in it,” Nancy Wolff, an attorney at the law firm Cowan DeBaets Abrahams & Sheppard, told Billboard in June. “Not everyone really understands the difference between rights of privacy and publicity and copyright.”
In the current case, Barbara claims Cyrus has an “immense presence” on Instagram, including 169 million followers when she posted the image in February 2020. He says that means her blast of his image “crippled if not destroyed” his ability to make money by licensing it.
The case did not include a specific request for damages, but copyright law allows an accuser to seek either their “actual damages” – the money lost due to infringement – or fixed “statutory” damages, which can total as much as $150,000 per infringed work. A rep for Cyrus did not immediately return a request for comment on Monday.
Such lawsuits usually end in quick settlements, but some celebrities have chosen to fight back.
After Ratajkowski was sued in October 2019 over an image of her carrying a large vase of flowers down a New York City street, the model and actress described her anger about the case in an essay in New York magazine’s The Cut site: “I learned the next day from my own lawyer that despite being the unwilling subject of the photograph, I could not control what happened to it.”
In court, Ratajkowsk’s attorneys argued that her use of the image was a legal “fair use,” because she had posted it to Instagram as a criticism of invasive paparazzi. They argued she had transformed the photo from an “exploitative image” snapped without her consent to “a commentary on the harassing and relentless behavior of paparazzi such as plaintiff.”
Eventually, though, Ratajkowski reached a settlement to end the case before the judge was able to rule on those arguments.
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