In the midst of the Toronto International Film Festival (TIFF), it seems an appropriate time to think about “red carpet photos” – photographs of celebrities taken by either professional or amateur photographers as the celebrity in question walks the “red carpet” at the premiere showing of a film. What legal considerations apply to red carpet photos?
Starting with the basics, the individual who took the photograph is both the “author” of the photograph and the initial owner of copyright in the photo (Section 13(1) of the Copyright Act) – most of the time. If the person taking the photograph was doing so in the course of their employment duties, then their employer will be the owner of the photograph (unless they have agreed otherwise) (Section 13(3)). And, because Canadian copyright occasionally delights in complication seemingly for its own sake, if someone other than the photographer was the owner of the “the initial negative or other plate” when the photo was made, then that person (or legal entity such as a corporation) will be deemed to be both the author and the initial owner of the photograph (Section 10(2)). (To make the analysis even more convoluted, all of this will change when Section 6 of The Copyright Modernization Act (Bill C-11) is proclaimed into force – after that, the question of who owned the negative or plate will no longer matter.)
To keep things (relatively) simple, let’s imagine I took a photo of Bruce Willis on the red carpet when I attended the Looper premiere on Thursday night (note: I did attend the premiere, and the movie could stand to be about 30 minutes shorter…). I now own the copyright in a great picture of a very famous person. What could I do with it?
As the owner of copyright, I can do a number of things with it: I can make prints of the digital file and adorn my house with them or I could sell the copyright in my photo to someone else, thereby making them the owner of the copyright in the photo. Are there any limits to what I can do with my photo? Certainly.
What if I wanted to print lots of copies of my Bruce Willis photograph and sell them to people for $20 each? Could I do that? What if I wanted to print my Bruce Willis picture onto a t-shirt and sell the t-shirts for $50 each? What if, say, a chain of men’s clothing stores came to me and said, “Hey, Bruce is looking pretty dapper in your photo and we want to use that photo in one of our advertising campaigns.” Any problems with any of those scenarios?
Let’s take the easiest one first – the advertising campaign. Although the law in this area is fairly under-developed in Ontario, if the clothing store chain did use the photo in their advertising campaign without Willis’ permission, they would almost certainly be infringing on his rights to make commercial use of his image. Willis couuld sue them for the tort of “appropriation of personality”. As confirmed in Gould Estate v. Stoddart Publishing Co., 1996 CanLII 8209 (ON S.C.), an individual, particularly a celebrity, “has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded”. As the court in Gould Estate noted, the tort will be especially easy to make out where there “has been an implication that the celebrity is endorsing the activity of the defendant” – in other words, if the chain’s advertising campaign makes it look like as if Willis is endorsing the chain, or that his image is being used in such a way as to encourage customers to buy at the store, he’ll have an especially easy time of winning his case.
What about my t-shirt featuring my photo of Bruce? Things start getting a little fuzzier here. I own the photograph, so I’m allowed to make copies of it – but does putting it onto a t-shirt and selling that as a separate product start looking more like I’m “appropriating” Willis’ personality? Perhaps. This doesn’t feature the “endorsement” aspect which the court in Gould Estate mentioned – but there still seems to be an element of the “marketing for gain” of Willis’ image – presumaby no one would buy my t-shirts unless Willis’ face was on them. As the Gould Estate court noted with approval, courts in the United States have upheld the rights of celebrities to prohibit the sale of “consumer merchandise” – the court cited examples such as Elvis Presley posters and pewter replicas of a statue of Presley. So perhaps my t-shirt is out of bounds too.
Okay, then – what about if I just wanted to sell prints of my Bruce Willis photograph? Here’s where things are fuzziest of all. If I can’t sell even prints of my photo, my photo is essentially worthless to me from a commercial standpoint. I might be inclined to argue: wait a minute – Willis was in public, at the premiere for his picture, walking the red carpet where knew he would be photographed, and in fact he was stopping and posing for pictures – how is it fair for him to then be able to prevent me from selling the photo I took? Nobody told me I couldn’t sell the photo, not even Bruce. So surely I should be able to sell it. Surely? Actually, let’s talk about Shirley.
While we don’t have much caselaw in Ontario (or anywhere else in Canada) which would provide much guidance, we can look to the US case of Shirley Jones v Corbis Corporation (Case No 10-8668 SVW (CW)) (previously discussed in detail at the Signal here and affirmed by the 9th Circuit Court of Appeal here). In that case, the court held that because actress Shirley Jones (best known for her work on The Partridge Family) had knowingly participated in a red carpet event, and in light of long-standing industry custom that “red carpet photographs are widely used and disseminated”, there was an implied consent by Jones for the use by the photographers (and Corbis, the licensee of the photographers) of “thumbnails” or “previews” to facilitate the sale of the photographs. However, the holding in that case is surprisingly narrowly-construed (as discussed here) – and because it is a California case, relying on California statute and precedent, it’s not totally clear how applicable the reasoning and the conclusion would be in an Ontario court. Nevertheless, we could probably mount a fairly strong argument that people who take photographs of celebrities at red carpet events are free to sell those photographs without impinging on the rights of the celebrities – certainly everyone knows that professional photographers take photos at such events and sell them to news outlets and image banks without any problems (absent the occasional lawsuit by Shirley Jones) and there’s no obvious reason why a non-professional photographer such as myself shouldn’t be allowed to do the same thing.
So surely I’m free to do some commercial things with my photo – I don’t need to keep it locked in a box, do I? If I’m doing non-commercial things with my photo I should be in the clear – so I could tweet it, post it to my Facebook account, etc. And as the court noted in Gould Estate, “freedom of expression considerations” should guide Canadian courts in identifying “the public interest” and placing limits on the tort of appropriation of personality – so where what is being done with the photograph consists of dealing with “thoughts, ideas, newsworthy events or matters of public interest”, then I should be able to make use of my photo irresepctive of Willis’ rights in his celebrity name and image. If I wanted to license (for a fee) to others the right to make copies of the photo (e.g., if a news organization wanted to use my picture on their evening news) because of the inherent newsworthiness of Willis’ attending at the premiere, I should be able to do so.
And the more the thing that I do with the photograph starts looking likely expressive activity in and of itself, the more likely I am to fall on the right side of Willis’ rights in his image. So if I wanted to get all Andy Warhol on my photograph and start making artwork using manipulated versions of the photo, the better off I’d be – and it starts becoming easier to see the distinction between slapping my photo (and Bruce Willis’ face) on a t-shirt and trying to sell it (problematic) and using my photo (and Bruce Willis’ face) as the basis for artwork (probably not problematic).
But that issue of “newsworthiness” I brought up before might cut a few different ways. On the one hand, it helps me exploit the copyright in my photograph without running afoul of Willis’ image-based rights – but might it also impact on the right of other people to use my photo without getting a license from me? What if I put my photo up on tumblr or Facebook, and a reporter or news editor for the evening news or the city paper sees it and decides to use it on their broadcast or in their next edition? Do they need my permission?
They might not. Section 29.2 of the Copyright Act stipulates that “fair dealing” for the purpose of “news reporting” does not infringe copyright in a work (such as my photo) if the “source” and the author are mentioned. So long as the news report mentioned (or showed on screen) my name and from where they had obtained the photograph, they might be able to rely on their fair dealing rights to include my photo in their news report or their article – but any conclusion on that point would entail assessing whether their use was “fair”, itself a six-point test set out in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. If they did use my photo without properly attributing it, they would not only be infringing my copyright, they might also be infringing the RTNDA Code of (Journalistic) Ethics, as the Canadian Broadcast Standards Council held in CBSC Decision 06/07-1408.
Thus does even a simple photo of a celebrity walking down the red carpet fractures into a complicated set of legal considerations… but at least it’s not as headache inducing as trying to figure out the time travel paradoxes posed by the storyline in Looper.