Tragedy revealed in copyright and image rights puzzle

Tragedy revealed in copyright and image rights puzzle

Try to follow this story. An artist prints and frames your Instagram post and puts it on display in an art gallery without permission. Have you noticed the copyright infringement yet?  Next: That Insta post contains a photo of you taken by a magazine, together with a selfie, and comments from your followers. Are you keeping track of the potential number of copyright owners? Ok now what do you do?

This twisted situation is being experienced in real life by model Emily Ratajkowski. Her solution was to take a selfie standing in front of the illegal work and create a non-fungible token (NFT) from it to claim the copyright. This “mise en abyme” of embedded images adds another layer to this incredible copyright and image rights puzzle.

Have you been able to follow the twists and turns? Let’s start from the beginning:

  1. Model Emily Ratajkowski discovers that an artist named Richard Prince is selling a large-format reproduction of her Instagram post. The work, which is on display in a New York art gallery, contains Ms. Ratajkowski’s profile photo as well as the main photo from the post, which is also a photo of her, together with comments from her followers.
  2. She tries to buy the work but it’s already been sold. She finds out that a second work of the same type by the same artist is for sale at a price of US$81,000. This time, the Instagram post contains a photo of her that was published in Sports Illustrated as well as her profile photo and follower comments.
  3. Emily Ratajkowski poses for a selfie in front of the work. She entitles this new selfie Buying Myself Back: A Model for Redistribution and decides to sell it as an NFT.

Why did she take a selfie and create an NFT? For Ms. Ratajkowski, it was essentially a statement of principle. A message to everyone that her image belongs to her.

Did Richard Prince infringe copyright?

The first question is: Did Richard Prince infringe copyright by framing an Instagram post? Can only an original work be protected by copyright? There are more questions.

Mr. Prince’s work consists of a screenshot containing a photo taken by a photographer, a second photo taken by Emily Ratajkowski, and comments from online users. Among those comments can be found one from Richard Prince himself.

Is it enough to simply add a comment in order to transform an Instagram post into a new original work? According to Richard Prince, yes it is. In his view, the work is “transformative” and therefore allowed as a fair use exception under U.S. copyright legislation.

A number of other artists have been subjected to this process. Five of them filed lawsuits for copyright infringement, reportedThe New York Times. Richard Prince prevailed in one of the lawsuits. That success could influence the outcome of the four other cases.

Does Emily Ratajkowski own a copyright?

To reappropriate her likeness, the model decided to buy the original of the work. However, owning a physical copy of a work does not make you the copyright owner! If it’s determined that Richard Prince’s work is original and therefore protected by copyright, its use by Emily Ratajkowski could be considered copyright infringement. She needed to get permission first.

Even though she’s the primary subject of the work!

Does creating an NFT really give her copyright?

An NFT is a certificate of authenticity recorded in a blockchain-type computer system. In theory, the purpose of an NFT is to keep a record of every time a work is shared in order to ensure that the copyright owner is compensated.

Emily Ratajkowski’s certificate was not issued by a court after ruling that she complied with copyright and is indeed the sole copyright owner. The certificate was added by the model herself. The copyright issue remains unresolved.

In fact, this specific use demonstrates one of the major drawbacks of blockchain technology: the absence of a trusted third party to confirm that the technology’s use complies with the legislation in effect.

Copyright vs. image rights

All these potential copyright infringements are actually obscuring a fundamental debate over image rights and how the modelling industry operates.

Under certain conditions, image rights allow an individual to have a say in the use of a photo in which they appear. Even though the photographer has exclusive copyright for the photos, that copyright is limited by image rights.

The legislation concerning image rights varies from country to country. In the U.S., it can be difficult for a public figure to apply those rights. As a result, the photographer’s copyright may take precedence over the image rights of the person appearing in the photo.

Ratajkowski’s fight for image rights

The 29-year-old model admitted that her photo and the use of an NFT were more of a symbol and an attention-getter than an actual reappropriation of her rights. The title of her work (Buying Myself Back: A Model for Redistribution) reflects her intention to send a message.

On a number of occasions, Emily Ratajkowski has condemned the abusive practices taking place in the modelling industry. The contracts between photographers and models, if a contract is even signed, grant few rights in terms of how the photos will be used. The models also receive very little in royalties.

Emily Ratajkowski said that she was paid only US$150 for the Sports Illustrated photo shoot and a “couple grand” when the magazine was published. She told The New York Times she paid US$81,000 for the work by Richard Prince, which incorporates a photo from that shoot.

Beyond the royalties, there’s also the issue of having a say in how the images are used and how women and their bodies are treated. Emily Ratajkowski can attest to cases of clear abuse. The lack of consent is not always limited to how photos are shared.

In an illuminating article in New York Magazine's The Cut, she explained how one photo shoot turned into a nightmare. Dozens of compromising photos that were never supposed to be published were released by “legit” photographer Jonathan Leder. Her description of the encounter includes a sexual assault.

As the article reveals, the young model’s attempt to reappropriate her image is also about image rights and a women’s right to physical integrity.