Photographer v. Influencer v. Brand

How can photographers level the playing field when it comes to getting paid for their work in the world of social influencers?

Late last week, an imbroglio bubbled up from the social media swamp and spilled over into the fashion and art press. Swords were drawn, sides were taken, and emotions were piqued. At dispute was no less than the future of online brand dollars (to the extent they exist in material numbers, as discussed later) spent on Instagram, Snapchat, and other social media platforms. Online brand dollars are those ducats spent by fashion houses, shoe companies, moisturizer purveyors, milliners, and so on to advertise their wares to followers and potential customers over the internet.

Most such brand dollars have been spent paying social influencers — tech-savvy celebrities as well as regular Joes and Janes who appeal to a certain niche or happen to have a high number of online followers — to wear, reference, or pose with a certain product while tagging the post with brand and product names. The key to these covert adverts is that the photograph — it is virtually always a photograph — must depict the influencer in a natural, street-set environment so that the image appears candid and caught-in-the-act and not paid-for. So, a photograph depicting a carefree influencer wearing this season’s millennium-pink Steve Madden pumps (as if!) while gamboling down a sun-dappled Greenwich VIllage sidewalk to an early pasta dinner (as if!) at Carbone would fit the bill and be catnip for Steve Madden’s online social media team.

What’s problematic is that the photographers that are best-situated to capture these candid street-style moments are mostly unaffiliated with either the influencer or the brand. And there is rarely any sort of written or oral agreement between the photographer, the influencer, and the brand that outlines the authorized usage of the photograph or requires compensation for such usage. What oft-happens instead is that the photographer creates the photograph and posts it online, where it is “borrowed” by the influencer or the brand (or often both) and used to sell shoes or other items or services. The common understanding of this transactive process is that the brand sells more shoes, the influencer gets a nice paycheck, and the photographer gets an @-ing or other credit on the post. In other words, everyone involved makes money other than the photog, who is stuck with that elusive, virtually valueless exposure compensation.

But, the photographers are now taking a stand and asserting that simple attribution will no longer cut the cake. A group of professional lens people, who have banded together under the seemingly official but not extremely well-branded name “The Photographers” let it be known last week that they would no longer sit idle while brands, bloggers, and influencers made coin using their photographs as the expressive vehicle for their advertisements and other posts. To make matters explicit, they launched the hashtag #nofreephotographs to be used in the space where street-style photographs would otherwise be tagged with the brand and product and influencer information.

The Photographers, to the extent they are creating photographs that drive product sales and line the pockets of the influencers, certainly should be compensated. And, per 17 USC 106 of the Copyright Act, the influencers and brands are violating at least two exclusive rights of The Photographers — the right to reproduce the copyrighted work and the right to distribute copies of the copyrighted work. Were they to bring copyright infringement claims they would likely be successful, especially considering that these uses are commercial and thus less likely to be fair use. And, if successful, they would be able to seek compensation in the form of lost license fees, damage to the value of the photographs, and recovery of certain of the profits derived through the unauthorized use of the photograph.

At least one online influencer has pushed back against The Photographers’ claims, though, asserting that the brands also exploit the online influencers, who are not actually making much, if any, money from their own involvement in the social media transactive process. This assertion appears dubious in light of a slew of news reports on the subject, but it is also misdirected, as this would be misconduct on the part of the brands, not The Photographers.

If the influencers feel that they are being exploited, they have their own statute to wield against the ungrateful brands and corporations who are monetizing their imagery and influence without just compensation. California Civil Code 3344 and New York Civil Rights Law 51 protect against the unauthorized use of one’s likeness, portrait, or picture without consent. Most other states have analogous statutes. Should an influencer find a brand posting photographs of the influencer wearing a certain shoe or scarf or leg brace or whatever, that influencer would be well within their rights to file a lawsuit under these statutes.

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While The Photographers and influencers may disagree on the value of photographs vis-a-vis the subject of those photographs, it appears they both agree that the brands are the ones really benefiting under the current structure. Through application of the Copyright Act and the likeness protection statutes, it may just be possible for them all to level the playing field when it comes to who benefits from the widespread commercial profitability of online imagery.


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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