On the heels of filing suit against Versace for posting his photos of Jennifer Lopez to its Instagram account without authorization, Robert Barbera is taking on Ariana Grande. According to the Splash News photographer’s suit, which was filed in a New York federal court on Monday, he “photographed singer, songwriter and actress Adriana Grande,” who turned around and posted two of the photos on her Instagram account this summer to promote the release of her “Sweetener” album without his authorization.
In the brief, 6-page complaint, Barbera asserts that Grande “willfully, intentionally, and purposefully, in disregard of and indifference to [his] rights … infringed [his] copyright in the photographs by reproducing and publicly displaying [them] on [Instagram].” It turns out, Grande “did not license the photographs from [Barbera] for her Instagram page, nor did [she] have [his] permission or consent to publish the photographs on her Instagram page.”
As such, Barbera is seeking a monetary sum of either “the damages that he sustained and will sustain, and any gains, profits and advantages obtained by Versace because of [its] violations,” or a sum of at least $2,500 up to $25,000 for each violation, whichever is greater.
The lawsuit joins an ever-growing string of suits filed by photographers against celebrities (such as Khloe Kardashian, Gigi Hadid, Odell Beckham Jr., Jessica Simpson, and Jennifer Lopez, among others), and fashion brands (including Versace and Jonathan Simkhai) for running afoul of the law by posting copyright-protected imagery without the copyright holder’s authorization, as required by law.
In accordance with copyright law, in order to make use of, make any reproductions or copies of, or distribute another’s image (or song, novel, sculpture, etc.), you must receive authorization from the copyright holder, which is usually the photographer. Such a requirement, as set forth by the Copyright Act, is not eliminated if the individual in the photo is the one making use of it.
However, as these types of lawsuits grow in number, they are facing budding pushback from the celeb defendants. As Gigi Hadid’s counsel recently asserted in connection with a pending copyright infringement case that was filed against the supermodel for posting Xclusive Lee, Inc.’s image of herself on Instagram, her use amounts to non-infringing fair use since the four fair use factors – 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken, and 4) the effect of the use upon the potential market – are allegedly satisfied.
More than merely fair use, though, Hadid’s counsel – echoing an argument made by an attorney for Cleveland Browns’ star Odell Beckham Jr. – asserted that the case is a “misuse of the Copyright Act” and “nothing more than an effort to extract money from Ms. Hadid, presumably based on a calculation that, even in a meritless case like this, the costs of litigation could cause Ms. Hadid to pay out a relatively modest settlement.”
*The case is Robert Barbera v. Ariana Grande and Grandari, Inc., 1:19-cv-04349 (SDNY).