When the Kardashian sisters—Kim, Kourtney, and Khloé—filed a copyright infringement lawsuit in California federal court against Bauer Publishing Company, the case attracted predictable celebrity media coverage. But beneath the tabloid narrative, the lawsuit raised significant legal questions about copyright ownership of commissioned photographs, the rights of copyright holders when their private content is published without authorization, and the damages available when family photographs and diaries are unlawfully disclosed. The case offers important lessons for photographers, subjects of commissioned photographs, and anyone with private photographic content they want to protect.
The Kardashian sisters alleged that Ellen Pearson, the widow of their late father Richard Kardashian, unlawfully sold family photographs and diary excerpts to Bauer Publishing Company. Bauer published some of the photographs and diary excerpts in its Life & Style and In Touch magazines. The sisters sought over $500,000 in damages, along with a share of profits from the magazine issues that featured their family photographs.
The case turns on who owned the copyright in the photographs—a question that depends on when the photographs were taken, by whom, and under what circumstances.
Under the Copyright Act, copyright in a photograph vests in the author of the photograph—the person who made creative choices in composing, lighting, and capturing the image. 17 U.S.C. § 101. For most photographs, the author is the photographer who operated the camera. Copyright protection arises automatically at the moment of creation without any registration requirement.
However, the person who appears in a photograph does not automatically own the copyright in it. A photograph of Kim Kardashian taken by a professional photographer is owned by the photographer, not by Kim Kardashian—unless the parties have a contract transferring copyright ownership, or unless the photograph qualifies as a work made for hire.
The Copyright Act provides an important exception for commissioned photographs: when a photograph is commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, and if the parties have executed a written agreement designating the work as a “work made for hire,” the commissioning party rather than the photographer owns the copyright. 17 U.S.C. § 101.
Family photographs taken by professional photographers are often not covered by work-for-hire agreements. In such cases, copyright remains with the photographer—not the family who hired the photographer. This creates a situation where a family may possess physical prints of photographs without owning the copyright that governs reproduction and distribution of those images.
Title 17 of the U.S. Code and the Copyright Act give celebrities certain rights regarding commissioned photographs of themselves—but the scope of those rights is more limited than many assume. Copyright law does not give a photograph’s subject control over how the photograph is used. What copyright law provides is that the copyright owner—typically the photographer—has exclusive rights to reproduce, distribute, and display the work.
The right of publicity, by contrast, is a state law right that gives individuals control over the commercial use of their name, image, and likeness. A celebrity whose photographs are published for commercial purposes without consent may have right of publicity claims in addition to or instead of copyright claims. In California, where the Kardashians filed their lawsuit, the right of publicity is recognized under both common law and California Civil Code § 3344, which provides statutory damages for unauthorized commercial use of a person’s likeness.
The Kardashian case raises a specific issue about private family photographs. Unlike photographs taken by a professional photographer for commercial purposes, family photographs are typically taken by family members—parents, siblings, or friends—with no commercial purpose in mind. When a family member takes a photograph, they own the copyright in it. What happens to that copyright when the photographer dies?
Copyright in a work created after January 1, 1978, lasts for the life of the author plus 70 years. 17 U.S.C. § 302(a). When the author dies, the copyright passes to their estate or heirs under the copyright holder’s will or the applicable laws of intestate succession—not necessarily to the persons who appear in the photographs or who have physical custody of prints. Ellen Pearson, as Richard Kardashian’s widow and potentially heir to his estate, may have inherited copyright interests in photographs he took—or she may have had physical possession of photographs without owning the underlying copyright.
The Kardashian case reinforces several important principles for anyone concerned about control over photographic content:
Revision Legal’s copyright attorneys advise photographers, content creators, and individuals on copyright ownership, registration strategy, and infringement matters. If you have questions about your rights in commissioned or family photographs, contact us today for a consultation.
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