After posting a photo of herself on Instagram, actress and musician Miley Cyrus was sued by the paparazzo who took the picture. Just one month later, the parties reached a settlement. Although the case quickly settled, the allegations raise an interesting legal issue: How much do you actually own your own likeness?

The facts of the lawsuit are straightforward. Paparazzi photographer Robert Barbera claims that he took a photo of Miley Cyrus in 2020, in which the singer can be seen waving to fans as she exits a building. Subsequently, the singer reposted the picture on her Instagram, without paying Barbera for a license or otherwise obtaining permission to do so.

In his complaint, Barbera claims that he owned the right to the photo because he took the picture. His ownership included the right to make money licensing the image. Cyrus has an “immense presence” online based on her hundreds of millions of followers; posting the image on her social media profile thus “crippled if not destroyed” his ability to profit off the picture.

As strange as it may seem to have to pay for pictures of yourself, the law appears to be on Barbera’s side. Per federal copyright law, when you take a photograph, you become the copyright holder of the photo. You retain the exclusive rights to reproduce the photo, display the photo in a public place, distribute the photo, and create derivatives of the image. If anyone wishes to use your copyrighted work, they must obtain your permission to do so. You can sell the rights to the photo wholesale or license out rights to the work as you see fit.

Individuals have limited rights with regard to their own likeness. Individuals have a right of privacy against invasion or publication of their privacy (such as if someone takes a picture of a person in their home without their permission). The right of privacy also extends to commercial appropriation, also known as the “rights of publicity.” People have a right not to have their likenesses used for commercial purposes--the photographer here could likely not have, for example, used the image on a billboard advertising his services.

The rub is finding the line between a right of publicity misuse--violation of the subject’s right to privacy--and commercially benefiting from the intellectual property ownership of the photo itself. California courts have held that while a person’s likeness cannot be used to sell other products or services without their consent (t-shirts, advertisements, etc.), a photographer retains the right to utilize the photograph itself, including for commercial gain.

The reason for the distinction lies in part with the legal concept of preemption. Essentially, the photo subject’s publicity right derives from state law, while the photographer’s intellectual property rights to the photograph itself derive from federal law. When they conflict, federal law trumps state law.

In this instance, Barbera seems to have the law on his side in protecting his right to license the photo online, even though the photo depicts the singer’s likeness. If he took matters a step further and used that photo to advertise or sell other goods or services, he would need Cyrus’s permission to do so. In the latter instance, so courts have reasoned, he would actually be using the singer’s likeness to sell the product. Use of her likeness would imply Cyrus endorsed the product. There’s always the chance future courts would come to a different conclusion, based on the evolution of photography and image usage in the internet era.