A recent lawsuit filed by photographer Jackson Lee against MediaNews Group illustrates the important distinction between copyright and the right of publicity. Lee claims the publisher used his photos of Beyoncé, Jennifer Lopez, and Justin Theroux on its local news websites without his permission. His case is based on copyright infringement rather than any violation of the celebrities’ individual rights.

Copyright, which is governed exclusively by federal law, protects original works of authorship, including photographs. The person who takes the photo typically owns the copyright unless those rights have been assigned or transferred. In this case, Lee owns the images because he created them. Although the photos feature celebrities, the individuals depicted have no ownership interest in the images themselves.

Some may wonder why using the photos in a news story does not qualify as fair use and therefore defeat the copyright claim. While news reporting is one of the purposes recognized under the fair use doctrine, courts still examine how the copyrighted work was used. The key issue here is not whether the subject matter was newsworthy but whether the publisher had the legal right to reproduce these specific copyrighted images. Using full images without permission, particularly when they are the creative work of a professional photographer and not merely factual content, weighs against a finding of fair use. Courts also look at whether the use harms the market for the original work. If a publisher uses a photo without paying for a license, it can interfere with the photographer’s ability to sell or license that image, further weakening any fair use argument. While MediaNews Group may assert a fair use defense, based on the available facts it would likely not succeed.

The right of publicity is a separate legal doctrine and a matter of state law. It protects individuals from the unauthorized commercial use of their name or likeness. It does not, however, prevent the use of a person’s image in editorial or news content where the image is relevant to the story. This is almost always the case when the individuals pictured are public figures. Celebrities such as Beyoncé and Jennifer Lopez are regularly covered by the media and therefore have less control over how their images are used in reporting that relates to matters of public interest.

Because the law gives publishers broader latitude when using images of public figures in news content, the celebrities in this case would not have a strong claim based on the right of publicity. Such claims typically arise when a person’s likeness is used for commercial promotion or product endorsement rather than in a news context.

Given these legal principles, it is not surprising that only the photographer and not the subjects of the images has objected to the publications. Copyright infringement is the only viable claim, and Lee has brought the lawsuit based on the publisher’s use of his images without securing the required licenses.

Publishers should be mindful that copyright and publicity rights are separate legal concepts that require independent analysis. Even when no publicity rights are implicated because the subjects are public figures, the publisher must still obtain the necessary rights from the photographer or other copyright holder to lawfully use such third-party images.