Celebrity-focused websites are wildly popular. Websites are incredible vacuum cleaners of content. Photographs are easy to copy and publish without authorization. You get the picture: photographs are easy to steal. Photographers are truly challenged in making money from the licensing of their images because of this combination of forces.
The alleged unauthorized use of a photograph came up in the context of celebrity-oriented websites. More people than will admit it are fascinated about the beauty secrets of the stars, about who has had facelifts, who has had Botox injections and fillers — and who has not. In other words, people want to know if the beauty they admire is artificial – or natural. If it’s the former, they want to emulate it — even young women and men. Looking like Mila Kunis or Johnny Depp is an elusive dream that many want but only a few achieve. That dynamic obviously results in substantial revenue for the cosmetics business, for estheticians, and for the cosmetic surgery profession. There are many customers who chase beauty and for whom cosmetics and facials are not sufficient.
Many plastic surgeons use websites to promote their practices. Youn’s celebrity website focuses on the cosmetic procedures of the stars (http://www.celebcosmeticsurgery.com) and it included a photograph of singer Cyndi Lauper with a headline asking the question, “Cyndi Lauper – Chemical Peel, Facelift?” The Hollywood Reporter has further details of the case. The Hollywood Reporter pointed out that “Dr. Youn is accused of too much lifting and tucking” of the copyrighted image.
In a complaint filed in United States District Court’s Central District, National Photo Group, LLC sued Beverly Hills plastic surgeon Anthony Youn and his company Youn Plastic Surgery, PLLC for copyright infringement as a result of publication of the image. The complaint was filed on January 25, 2013.
As of this writing no answer to the complaint has yet been filed. So, we haven’t yet heard what defenses Dr. Youn will offer — or if the case will be quickly settled. Comments about wrinkles that may develop in the case substantively are, therefore, premature.
These kinds of suits, in which photographers or their agents sue celebrity websites, are frequent. For example, X17 and others sued celebrity blogger Perez Hilton for allegedly publishing photographs without permission.
From press reports, it looks possible that one of the plastic surgeon’s defense may be, in part, that use of the image is a “fair use” because the website might be said to be “advertorial” reporting of news about plastic surgery – including what famous people do and don’t do as they fight the forces of age and gravity. The complaint describes the website as being “dedicated to current events, including celebrity news.” The fair use defense for news reporting is far from absolute, though, and publications both on the Internet and in print need to obtain licenses for copyrighted content they publish unless the exception of the fair use defense applies. The fair use defense is the great exception to a copyright owner’s dominion over reproduction and publication of copyrighted works.
Note that the lawsuit was brought by the photographer’s agency – not by Ms. Lauper. Ms. Lauper, like any person famous or unknown, owns her right of publicity and that permits her control over commercial use of her likeness, biographical details, and other indicia. That right of publicity is separate from rights in the photograph. Typically it is the responsibility of the website to clear rights in both the image (from the photographer) and from the celebrity (from his or her agent). But a kind of fair use defense or right exists against right of publicity claims for news reporting about a famous person.
Further, websites for many plastic surgeons run “before and after” images of patients who aren’t celebrities (or are celebrities of the future). Use of such photographs must be secured by written releases that are compatible with the federal HIPAA medical privacy law and state laws regarding commercial uses of a person’s image. That’s not the issue in this case, though, because apparently Ms. Lauper was not a patient of Dr. Youn.
The case may well raise eyebrows regarding the intersection of copyright, news reporting, and the right of publicity. Litigation can be for the parties involved a kind of surgery without anesthesia, and we should learn much more as the case develops.
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.