On July 6, 2021, Integral Images filed a lawsuit against the British singer Dua Lipa for alleged violation of U.S. copyright law when she posted a photo of herself on her personal Instagram account. The photo was taken by a paparazzi of the photo agency, Integral Images. They are seeking a whopping $150,000 in damages asserting that Dua Lipa did not obtain their consent to use the photo. On February 7, 2019, Dua Lipa posted the controversial photo on her Instagram account which has 69 million followers. Although Dua Lipa had already deleted the post, Integral Images continues to seek damages plus a jury trial and an order that will prevent the 25-year-old star to commit further acts of infringement. The photo agency contends that Dua Lipa profited from posting the photo that they own because her Instagram account is being used to publicize her image as a musician, as well as her music.
This is not the first time that we have heard of this story. Several celebrities and popular icons have been on the receiving end of this legal entanglement. Just last year, Jennifer Lopez was sued for posting a photo of herself on Instagram. The photo was taken by New York-based photographer, Steve Sands. The lawsuit cites that the actress/singer used the copyright-protected photo that Sands took to “promote their brand” on the social media platform. The contended post garnered 656,000 likes.
The general public who is not familiar with copyright law may find this story audacious. Laypersons will find this intellectual property protection irrational. After all, Dua Lipa is the subject of the photo so the image should belong to her. Copyright protection is granted to the one who took the photo and not to the subject of the photo, and it is acquired from the moment of creation. In this case, Dua Lipa’s photo that was taken by the paparazzi belongs to Integral Images from the moment the paparazzi clicked his camera.
Generally, copyright law is a blessing to artists as it grants them protection over their original works. In the Philippines, the IP Code grants the author of an original work the exclusive right to exploit the work during his/her lifetime and fifty years thereafter. The salutary purpose of copyright law is to “promote the progress of the science and useful arts”. To encourage the creators to produce more original works, the law grants them exclusive rights to their creations, thus, giving them economic benefit. The IP Code provides the copyright owner a bundle of rights, such as the right to reproduce the work, the right to prepare derivative works, the right to distribute copies of the work, and the right to perform and display the work publicly.
However, determining whether Dua Lipa is liable for copyright infringement is dicey because the law provides for the fair use defense, which allows the limited use of a copyrighted work. Thus, even if there was an unauthorized appropriation of a copyrighted work, the person who committed the unlawful act is not liable for copyright infringement.
Fair use is a legal doctrine designed to espouse new creative and intellectual works. Copyright protection is granted not solely for the interest of the author. Its main goal is essentially to spur the creation of more novel materials that would benefit the greater public. As much as copyright throws a blanket of protection on copyright owners, the rigid application of this law may decelerate the proliferation of more creative works. Because the law aims to foster creativity, the fair use doctrine was adopted to allow others to use and base their new works from prior works in a way that does not harm the copyright owners’ right to benefit from their works.
The fair use doctrine allows the use of copyrighted work under certain circumstances. For example, it allows other individuals to make limited use of copyrighted material for non-profit and educational, and/or research purposes. However, this does not excuse the academe and its students to reproduce copyrighted materials with the intention of replacing the purchase of the entire book, journal, anthologies, broadcast, recordings, and the like.
In the Philippines, a four-factor balancing test is used to determine whether the fair use defense is applicable. The factors to be considered include 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use on the potential market for or value of the copyrighted work. It is similar to the four-factor test of the U.S.
THE FOUR-FACTOR TEST
The first factor examines the purpose and character of the use of the work. The courts are more lenient if the unauthorized use is for a non-profit purpose. An example of this is when a student uses a snippet of a president’s speech in his school project that requires him to talk about the leadership regime of his country. The use of the quotation is considered fair because it was used for an educational purpose.
Aside from looking at whether the use was for a commercial purpose, the first factor also looks at the degree of transformative use of the new work. Works that provide additional value and imbue the new work with a different meaning or purpose is often considered as fair use. Parodies heavily rely on the first factor to avoid infringement issues. An example of this is the case of Leibovitz v. Paramount Pictures Corp. In the said case, Annie Leibovitz took a photo of the then-pregnant Demi Moore who graced the cover of Vanity Fair in 1991. In its attempt to create a buzz, Paramount produced a similar photo using similar lighting and the same position of a naked pregnant woman except that the head of Leslie Nielsen was superimposed onto the head of the woman. Leibovitz sued Paramount, but the court ruled that the humorous effect of Paramount’s photo is a fair use parody of the original. It bears stressing that a work is only considered a parody if it uses humor to criticize or comment on the original work.
The second factor looks at the nature of the copyrighted work. The courts tend to protect more the economic rights of authors who produce creative works as compared to authors who produce factual works and informational materials. In practice, non-fiction writers seem to receive less protection than those who exhaust more creative energy towards producing creative works.
The third factor focuses on the amount taken from the copyrighted work. There is no hard and fast rule on the amount needed in order to consider the use as fair. The law considers not only the quantity of the copied portion but also the quality of the copied segments of the work. If one takes the “heart of the work”, even if it consists of only a small portion of the work, then fair use is less likely to be considered.
The last factor of the four-factor test looks at the effect of the unauthorized use on the potential market or value of the copyrighted work, i.e., whether the unauthorized use impedes the copyright owner from earning from its actual or potential market. The potential market does not solely refer to the market that the owner of the copyrighted work taps. It also extends to any market that might be available to the copyright owner. The fourth factor leans toward fair use if the unauthorized use does not pose harm to the owner’s ability to monetize his/her work. For example, in Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., Nintendo sued Lewis Galoob for manufacturing Game Genie, a device that allowed users to modify up to three features of a Nintendo Game by encoding program codes that alters the values of the game program. Nintendo contends that Game Genie created a derivative work that infringes the copyright of Nintendo. However, the court ruled in favor of Galoob and held that the device is not a derivative work. The court likened the use of the Game Genie to “skipping portions of a book”. The court also found that Game Genie did not displace the market demand for video game cartridges nor harm its potential market because the device is dependent on Nintendo’s games and it is rendered useless without it.
There is no definite way to say whether the fair use defense is applicable. The four factors merely serve as a guideline for judges when deciding the outcome of the case. The court resolves a fair use claim based on how they perceive the facts of the case. No single factor is determinative of whether the use of a copyrighted work is fair. The court uses a balancing test and looks at all the factors as a whole to determine whether the fair use defense is applicable.
Although the fair use defense is a defense to copyright infringement, it does not give anyone the absolute right to appropriate the work of another. One should always be careful in what they post on social media. It is best to use your own work or seek explicit consent from the owner of the work. Note that attributing credit to the owner does not necessarily excuse you from copyright infringement if you have not been given permission to use the work. Stipulating CTTO or “credit to the owner” has been the trend in social media. Users assume that giving credit to the unspecified author absolves them of any legal liability. Even if Dua Lipa gave credit to Integral Images, she could still be sued for copyright infringement. Always remember that intent is immaterial to copyright infringement.
Taking into account the four factors, do you think Dua Lipa has a chance to escape this legal mess unscathed? Let us wait for the court to decide.