So, last week, Taylor Swift was using her muscle to first call-out and then praise global-behemoth Apple Inc. once the Cupertino, CA company fell into line with her way of thinking (on royalty payments during the trial-period of Apple's new streaming service). This week, Swift is on the outs with photographers (and photographers on the outs with her - I sense a song coming from this episode). Apparently, Swift and at least one photographer disagree on whether the photographer is wholly restricted or selectively restricted in using a photo more than once (taken during the "1989 World Tour"). The photographer claims that each photo can be used only once and that the copyright ownership is retained by Firefly Entertainment (Swift's label) presumptively under a "work made for hire" provision in the contract. Conversely, Swift claims that while each photo may be used only once, additional uses may be provided by submission for approval to Firefly Entertainment, and that the copyright ownership is retained by the photographer (and no "work made for hire" situation ensues). Obviously, without the executed agreement between the parties, it is difficult to guess which side has the best or better argument(s). However, "work made for hire" (WMFH) situations are usually very clearly denoted in such agreements, using the specific language from the statute to make it clear that the photographer is being hired by the performing artist for a specific purpose, for a specific (enhanced) fee, and with copyright ownership clearly aligned into the portfolio of the performing artist. The confusion of whether the photographer is or is not operating under the WMFH provision is, well, confusing.
What may not be readily apparent is that this is not really a fight over copyright issues (or, at the least, the copyright issues are secondary and subservient to a larger set of issues). Consider: the images captured by the photographer are of Taylor Swift, not of the stage set-up, costumes, band and back-up singers, or the like. All individuals, famous or not, have the common law right of publicity - the right to exploit his/her name, image, or likeness (aka, NIL rights), or prohibit exploitation by others. It is a non-federalized form of intellectual property, but tends to be a companion to trademark litigation cases and/or other forms of unfair competition. And despite these cases not generally grabbing the headlines the way a good patent, trademark, or copyright row grabs, these cases are often more interesting and fairly important (esp. for the entertainer or athlete involved). In the case of someone as famous as Swift, the ability to exploit and protect against against undesirable (or perhaps over) exploitation makes this form of intellectual property particularly useful for individuals with an established and branded identity.
Right of publicity, and esp. the NIL issue, has grabbed headlines recently with the litigation spurred by former collegiate athletes Sam Keller (Arizona St. quarterback) and Ed O'Bannon (UCLA basketball center) and the class of current and former collegiate athletes each represented in suing the NCAA and EA Sports. Although the cases were different, each touched on the right of athletes to exploit their NIL rights. In Keller et al., the plaintiffs successfully sued EA Sports, surviving an appeal, for its use of collegiate NIL in their popular (and realistic) collegiate video games. After surviving the EA Sports appeal, the NCAA settled with the Keller plaintiffs for $20 million. In O'Bannon et al., the plaintiffs successfully sued based on an anti-trust claim that collegiate athletes were not allowed by the NCAA and its member institutions to individually or collectively negotiate with EA Sports (the advantageous beneficiary of amateurism concepts) for pecuniary gain in the use of collegiate athletes' NIL. Because EA Sports and the NCAA had negotiated the use of NILs of collegiate athletes for a sizeable licensing sum, there is established value in the NILs of the athletes. By cutting out the athletes, and by denying the athletes a cut of the licensing fee royalty, the plaintiffs alleged that the actions of EA Sports and the NCAA were anti-competitive and a restraint on commercial trade. This case was also sent up for appeal before the Ninth Circuit, with a decision looming.
Accordingly, rights of publicity and NIL issues are of considerable importance, esp. when the prospect of others free-riding and making a considerable profit. While it may appear such celebs are on a power trip, protecting one's valuable NIL in the age of electronic media is a harrowing but necessary proposition.