By Robert Poston, J.D. Candidate, 2020
In the span of a few years, Ariana Grande has morphed from a young Nickelodeon actress into a Grammy-award-winning popstar. But Grande has not just transformed her image and career—she has transformed how celebrities can take advantage of copyright law. In early 2019, Grande made headlines when she announced her Sweetener tour’s media policy. In exchange for media access to her concerts, all members of the press would have to relinquish their copyrights to photographs taken at her concerts. In essence, Grande’s new policy would force media outlets to license their photographs back from her in order to use them on their various platforms. While Grande’s policy presents a novel and innovative way for celebrities to take control of copyright laws for their own gain, her policy nevertheless diverges from the core principles of intellectual property law and threatens to harm the copyright interests of other artists in the process.
For centuries, copyright law has sought to encourage creative expression through a promise of protection. Original works of authorship, fixed in a tangible medium, immediately afford their creator various exclusive rights, including the right to distribute, publicly display, and reproduce the work. Photojournalistic images taken at public events are no exception to this rule. It is a long-standing principle that all individuals, no matter their level of fame, may be photographed in any place where they do not possess a reasonable expectation of privacy. Because of this principle, photography subjects have limited ability to control a photographer’s use of images since the photographer possesses a copyright interest in the photographs they create. In fact, there are only two primary ways in which a person can exert control over images that feature him or her as subjects. The first method is to successfully demonstrate that he or she was photographed without his or her permission and in a place he or she reasonably expected to be private. The second method is to show a misappropriation of the subject’s likeness for commercial purposes. Grande cannot possibly expect privacy on stage at her sold out concerts. Similarly, photos of her at her concerts are also not automatically misappropriations of her likeness since most photos taken by the media are used for the purpose of covering or discussing the artist on their various platforms; it is only when these photos are used for commercial purposes without her consent (such as through t-shirt sales or brand promotion) that there is a misappropriation of her likeness. Therefore, her causes of action should remain limited only to state-law right of publicity claims when appropriate.
Ariana Grande’s new media policy, however, has the practical effect of turning copyright law on its head; instead of the creator holding the copyright, the subject is left holding the copyright. This change allows Grande to bring not only state-law claims for misappropriation of her likeness, but federally enforced copyright infringement claims as well. Under her new policy, media outlets will have to license photographs from Grande that their own photojournalists have captured—just so that the outlet can use the image on their various platforms.
It is easy to see how this policy would be appealing to Grande. In addition to shielding images from misappropriation, Grande’s policy also makes it easier for her to control and protect her public persona. Unfortunately, such a policy not only subverts the traditional framework of copyright protection, but also harms the intellectual property interests of many photographers. When Grande’s new policy was first announced, many criticized her decision. Their criticism was two-fold: first, while Grande is a public figure, she is not entitled to ownership of images taken at her performances simply because she appears in the photographs; second, Grande should be respectful of other artists, such as photographers, who rely on those same copyright protections she does to protect her music. Rather than forcing photographers to relinquish their rights in exchange for access to her concerts, Grande could instead adopt other policies that would provide her with the control she craves without presenting the same concerns her current policy provokes. For example, a number of major sporting events have implemented restrictive policies in an effort to exert control over their brand and cater towards the logistics of their venues. Some of these policies include requiring media members to adhere to rigorous credentialing processes, remain in designated areas, or maintain certain equipment standards in order to take photos at their events. Similarly, other music artists have also implemented policies that limit photographers to capturing photographs only during the first three songs of a particular show. It is simply not necessary for Grande to require the media to give up their copyright interests when there are a variety of other ways for her to achieve the same goal of control.
For the time being, it appears as
though some media outlets will be frustrated by the choice between content and
their own sense of integrity; outlets wishing to cover Grande’s concerts must
choose between playing by Grande’s rules or forgoing access to her concerts—neither
of which are ideal situations. Creators deserve protection for their work just
as individuals deserve protection for their likeness. Grande’s decision to
adopt such a policy therefore sets a dangerous precedent—one in which the
rights of photographers might be permanently diminished.
 GrandAriTour, Inc, Standard Terms and Conditions For Photographers/Live Appearances (2019), https://nppa.org/sites/default/files/Ariana%20Grande%202019%20–%20Standard%20Terms%20and%20Conditions%20for%20Press%20Concert%20Photos.pdf.
 17 U.S.C. § 102 (2019).
 See Restatement (Second) of Torts § 652B (Am Law Inst. 1979) (noting that there is only an intrusion of privacy when an individual intentionally intrudes upon the solitude or seclusion of another or their private affairs or concerns, and does so in a way that would be offensive to a reasonable person); see, e.g.,Mark v. King Broad. Co., 619 P.2d 512, 519 (Wn. App. 1980) (holding that it was not an invasion of privacy for an individual to record another individual from a public street since that activity was visible to pedestrians).
 Restatement (Second) of Torts § 652B (Am Law Inst. 1979) (noting the intrusion into one’s privacy is actionable whether or not a photograph is taken).
 Id. at § 652C.
 See, e.g., Letter from Mickey H. Osterreicher, to Aaron D. Rosenberg, GrandAriTour, Inc. (Mar. 25, 2019) (on file with the National Press Photographers Association) (“This surprising and very troubling over-reach by Ms. Grande runs counter to legal and industry standards and is anathema to core journalistic principles of the news organizations represented here.”).
 Atlanta Hawks, Media Guide 2018-2019, https://atlantahawkspr.files.wordpress.com/2018/10/1819_hwk_pr_media-guide.pdf.
 See Nicole Radja, Sean Williams, In Studio on Location (Jan. 3, 2010), http://instudioonlocation.blogspot.com (explaining the history of the three-song rule as a response to photographers distracting performers).