When news came out that renowned music and New York nightlife photographer Catherine McGann was suing Bruno Mars for posting a throwback picture she took of him as toddler Elvis impersonator on his social media accounts, the backlash against McGann was brutal.
Many couldn't fathom how can someone sue you for sharing a photograph of none other than YOURSELF, especially taken as a kid when you couldn't give much consent or object to it.
Most of us have posted childhood photos of ourselves on social networks. However, @BrunoMars is facing a lawsuit. Photographer Catherine McGann is reportedly suing the singer for posting the photo of himself, which she took back in 1989. https://t.co/VGJVVzVLio pic.twitter.com/UC8TywZo75— ASMP (@asmp) December 7, 2017
Who owns the rights to your image?
While the idea that you can be sued for posting a picture of yourself may sound ridiculous to many, McGann explains that she owns the copyright to the image, thus Mars would have had to get her permission before posting it. The image garnered over a million likes on Instagram.
Many have accused the photographer of being greedy and desperate for fame, but she may have a case here according to Maurice Harmon, of Harmon Seidman Bruss & Kerr LLC, a national law firm representing photographers, artists and writers. Harmon tells Konbini:
"The copyright in the photograph is the intellectual property of the person creating it unless there is an agreement to the contrary, an employment relationship, or a work-for-hire arrangement."
Basically, the fact that the image is of Bruno Mars really doesn’t matter here since the author of the photograph owns the image as far as the Copyright Act is concerned.
According to Harmon, McGann's use of Mars' "likeness" without authorization could raise a different set of questions if she was using it for commercial profit. However, these issues have to do with information privacy law, not copyright law.
"Copyright infringement is a strict liability claim. Whether the infringer knows his or her's use is infringing is only relevant to damages, not liability."
How exactly did Mars get his hands on this image is not clear, but it appears he may have gotten it from McGann's Instagram account and conveniently cropped off her copyright management information ("Copyright Catherine McGann") at the top of the photo. Based on that, the photographer can argue that Mars violated the Digital Millennium Copyright Act (DMCA).
According to Instagram, users are responsible for the proper use of any content they share on the platform. You’re responsible for ensuring you have permission to use that content on your page. Nevertheless, most people on social media don't usually take the time to find out if they have the right to re-post an image.
Although the amount of money McGann is awarded will depend on whether she registered the image before or after the alleged infringement.
If the work is not registered prior to the to the infringement, she will not be able to collect statutory damages or attorney’s fees. She could only collect lost licensing revenue and any profits attributable to the image. Warner Music, Mars's record label, is also named in the suit.
Harmon stresses that photographers should always register their photographs with the Copyright Office within 90 days of creating them: "If you do so, you will have more protection than if you wait until later to do so."