An amusing chance to review some key ideas

There are probably many readers out there who know who Vanessa Hudgens is.  I did not, until I saw some blog posts reporting on her ongoing lawsuit against website owners who apparently posted nude photos of the actress and singer without her permission; see this report (without the pictures) on the TechDirt site.  Not, I admit, a serious issue of scholarly communications, but it does offer a chance to review some key points about copyright law about which there seem to always be questions and confusion.

First, the subject of a photograph does not have a copyright claim in the picture.  As the post linked to above points out, this has some counter-intuitive results.  One of the best photos of my wife and I together taken in recent years was snapped by a stranger we met in Istanbul who asked me to take a picture of he and his new bride and then returned the favor.  Oddly, he has a copyright claim in photo on my wife and I while I would have a claim in the picture of him, on his camera.  This is a result of the automatic nature of copyright protection, which showers down on a creator as he or she creates.  No such right in copyright accrues to the person whose picture is taken.  In the case of Ms. Hudgens, who is suing for copyright infringement, the ability to make that claim depends on the asserted fact that she took the photos herself, using a cellphone camera.  Were they taken by another person, Ms. Hudgens would not have any copyright claim.

This brings us to the need to distinguish copyrights, which are granted and enforced by federal law, from a right of publicity, which is a state law claim.  Merely as the subject of these photos, Hudgens might still have a claim that her right of publicity has been infringed, even if she had no copyright claim.  There could be a dispute about whether posting these pictures to a website was a commercial use, which is usually necessary to trigger the right of publicity, but I suspect that the website sells advertising and expected the photos to drive up both hits and revenues.  So posting the pictures might well have been the kind of use that would violate Vanessa’s right to control commercial use of her image (as well as other privacy rights, perhaps).

This need to distinguish between the owner of a copyright interest in a photograph (the photographer) and the owner of the publicity right (usually the subject) is the first lesson we can tease out of this case.

There are other ways a subject might get a copyright interest in a photograph, by the way.  First, the photo might be a work made for hire.  In that case, the employer owns the copyright from the start, and the employer might well also be the subject of the photo.  But just paying for a photograph does not make it a work for hire; the photographer must either be a regular employee of the employer/subject or an independent contractor who explicitly agrees in writing that the work will be a work for hire.  Alternatively, the photo might be a derivative work based on a copyrighted work that is part of its subject.  Suppose an artist poses in front of one of her paintings, or that Vanessa Hudgens had been wearing a dress she had designed herself (clearly counter-factual).  In those cases, the subject would have a copyright interest in the photo because of the derivative representation of an original work.

Finally, we can also take from this case a reminder about the role of registration in copyright protection.  The blog post notes that it is “odd” that these photos are registered with the Copyright Office if they really were private self-portraits, as claimed.  Not really.  We should remember that registration is not required for protection — copyright is bestowed automatically as soon as the pictures were snapped — but it is required to bring an infringement action into court.  Thus it is perfectly possible to hold a copyright, have it infringed, then go and register that right before bringing a lawsuit.  In fact, a quick review of the Copyright Office’s records suggests that this was the case here, since the registration data of the photos is October 2009.  If one follows that sequence of events, the range of damages is limited, since statutory damages are not available.  I suppose, however, that if copyright was registered before the infringement took place (and thus statutory damages are sought), one might well doubt the assertion that the photos were intended to be private.