NFL Player Battles With Paparazzi Agency Over Instagram Photo

Last October, on the day after New York Giants football player Odell Beckham Jr. returned home from ankle surgery, a photographer snapped pictures of him that subsequently appeared on TMZ.com and the Daily Mail's website.

Beckham then posted one of the photos to his Instagram account, along with other pictures that were taken in the hospital. He says he did so to document his "injury, surgery, and ultimate return to professional football."

This January, a lawyer for Splash News and Picture Agency -- a paparazzi agency -- allegedly demanded that Beckham pay $40,000 for having posted the image to Instagram.

Instead of paying, Beckham went to court. On Thursday, the athlete filed a lawsuit accusing Splash News of trying to "extort" $40,000 from him.

"Splash attempted to extort $40,000 from Beckham for allegedly posting a picture of himself on his own social media account when that picture was licensed to websites that made it available for 'sharing' across social media platforms," he alleges in a complaint filed in U.S. District Court for the Eastern District of Louisiana. "Splash was not satisfied with merely invading Beckham's privacy and exploiting his tragic injury and celebrity status, it also saw fit to attempt to capitalize on his personal financial success and squeeze an exorbitant amount of money out of him directly."

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Beckham is asking for a declaratory judgment that he didn't infringe copyright, and is also claiming that Splash and the photographer violated his right to privacy and misappropriated his image. His lawsuit alleges that the photographer "secretly shot the photos through a gate at Beckham's private New Jersey residence, with the aid of a telephoto lens."

The athlete is seeking a ruling that he didn't infringe copyright. He suggests in his complaint that the photo isn't "creative" enough to warrant copyright protection. "There is nothing creative or distinctive about the point-and-shoot, ambush style photos, except that they feature Beckham," he alleges.

But any argument that the photo doesn't warrant copyright protection appears weak, according to copyright attorney Craig Whitney, a partner at the law firm Frankfurt Kurnit Klein & Selz. "Courts have held the amount of creativity required is pretty low," Whitney tells MediaPost.

Beckham's complaint also suggests he will argue that he had a fair use right to post the photo. His allegations that he posted the photo in order to document his experience indicate he will say he had a newsworthy purpose -- which is one factor in determining whether he had a "fair use" right to post the photo.

Whether he could prevail with that argument appears to be an open question. "Fair use arguments are extremely fact intensive," Whitney says, adding that it's often difficult to predict how judges will rule on the issue.

The athlete is also seeking damages for invasion of privacy and misappropriation of his image.

Beckham isn't the only celebrity involved in a court battle over paparazzi photographs. Jessica Simpson and Khloe Kardashian also were sued recently for allegedly infringing copyright by posting photos of themselves to social media sites.

Beckham's complaint references the suit against Simpson -- which also was filed by Splash News. In that case, Simpson -- or someone who manages her social media account -- posted a paparazzi photo showing her leaving the Bowery Hotel in New York City.

Splash argues in its complaint against Simpson that her use of the photo -- which originally ran in the Daily Mail last August -- was "commercial," because she uses her social media accounts to promote herself and her fashion line.

"Simpson’s Instagram post and Twitter tweet made the photograph immediately available to her nearly 11.5 million followers and others ... who would otherwise be interested in viewing licensed versions of the photograph," Splash News alleged in a complaint filed in U.S. District Court for the Central District of California.

Beckham now says that Splash News' lawsuit against Simpson "underscores the imminence of the potential harm" to himself.

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