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Katy Perry photo-theft lawsuit to proceed, but judge urges an out of court settlement
By Chris Cooke | Published on Friday 20 March 2020
Katy Perry may have successfully overturned the big song-theft judgement against her in the US courts this week, but another copyright dispute she’s involved in – over her posting of a paparazzi shot of herself to Instagram – will proceed. Though, while the judge hearing that latter case refused to dismiss it via summary judgement, he did urge both parties to settle out of court.
Last year Perry became the latest celebrity to be sued for posting an unlicensed paparazzo snap to Instagram. The photo was of Perry dressed up as Hillary Clinton at a Halloween party back in 2016. Obviously, when it comes to photos, the photographer – not the subject of the picture – is the default owner of the copyright in the image.
The agency who controls that copyright – BackGrid – claimed it had been chasing the pop star ever since she posted the picture, urging her to pay for a licence. Because Perry had failed to do so, they wanted damages for copyright infringement.
Perry filed a motion to dismiss BackGrid’s lawsuit in February. As expected, she said that her use of BackGrid’s photo was covered by the fair use doctrine under US copyright law. Her legal filing also argued that Perry’s costume was protected by copyright too, making the photo an unlicensed derivative work – ie the photographer infringed Perry’s copyright when taking and distributing the photo.
After both sides presented oral arguments earlier this month, the judge this week issued a short ruling declining the motion to dismiss. Judge Andre Birotte Jr didn’t rule on Perry’s arguments specifically, but said that her February legal filing “turns on factual issues that are simply not appropriate for resolution on a motion to dismiss”.
Because lawsuits of this kind are a relatively new phenomenon – and many of the celebrities previously targeted have settled out of court – the arguments presented by Team Perry are pretty much untested. Therefore, in some ways, getting some precedent on these matters would be interesting and useful.
Nevertheless, Birotte urged Perry and BackGrid to agree an out of court settlement. He stated: “The court urges the parties in the strongest possible terms to use their best efforts to resolve this case instead of incurring additional legal fees and causing the court to expend its limited resources on this limited dispute”.
