Jay-Z Is Suing a Photographer for ‘Exploiting’ His Image. Does He Have a Case?

We spoke to a legal expert about whether Jay-Z's lawsuit has merit—or, instead, if he's simply bullying a former collaborator.
Drew Schwartz
Brooklyn, US
June 18, 2021, 5:38pm
Jay-Z
Photo by Kevork S. Djansezian via Getty Images

In 1996, as Jay-Z was gearing up to release his debut album, he hired a photographer named Jonathan Mannion for a photoshoot. Mannion took hundreds of photos of the rapper, one of which he wound up using for the cover of 1996’s Reasonable Doubt. Now, twenty-five years later, Jay-Z is suing Mannion—alleging that he’s been exploiting those images and illicitly trading on the superstar’s name for his own gain.

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Mannion, a big name in hip-hop photography who’s worked with artists from Biggie Smalls to DJ Khaled, offers a handful of photos of Jay-Z for sale on his website, along with a T-shirt with Jay-Z’s name on it. According to the criminal complaint Jay-Z’s legal team filed in a California court this week, Mannion needed to ask for permission to sell that merchandise—something he never did. Jay-Z has asked Mannion to stop selling anything with his face or name on it, but he’s refused to do so, the complaint alleges. On top of that, he allegedly asked Jay-Z to pay him “tens of millions of dollars” to stop selling the images and the merch, according to the complaint.

“To be clear, JAY-Z did not bring this lawsuit so that he can monetize these photographs,” the complaint states. “Instead, he seeks to stop them from being further monetized at all.”

That’s not all Jay-Z is seeking, though. He’s also going after Mannion’s money, asking the court for a wide variety of damages that could amount to a small fortune. 

Jay-Z’s legal team declined to comment to VICE, and Mannion didn’t respond to a request for comment—but his legal representative told Pitchfork that Mannion is “confident” he’s legally protected under the First Amendment.

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“Mr. Mannion has created iconic images of Mr. Carter over the years, and is proud that these images have helped to define the artist that Jay-Z is today,” Mannion’s rep told Pitchfork. “Mr. Mannion has the utmost respect for Mr. Carter and his body of work, and expects that Mr. Carter would similarly respect the rights of artists and creators who have helped him achieve the heights to which he has ascended.”

From an outsider’s perspective, it’s difficult to know whether Jay-Z’s suit has real merit—or, instead, whether this is an attempt by one of the world’s shrewdest and richest musicians to squeeze money out of his former collaborator. To get a better understanding of what’s really going on here, I called up Dani Oliva, a Los Angeles entertainment attorney who’s an expert in cases like this one.

VICE: Can you talk me through the legal issues at the heart of this lawsuit?
Dani Oliva:
You can't use somebody’s public image for commercial gain—period—without a license or their permission. Artists, creators, filmmakers, actors, and so on, they have a right to control that image. And their ability to monetize it is extremely important. If Jay-Z's image is available widely, and everybody's using it without permission, if Jay-Z then wants to promote something—let's say an upcoming album, and he wants to do a deal with Fendi—it diminishes the value of his brand and his person.

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Assuming what Jay-Z has alleged in this complaint is true, what, exactly, did Mannion do wrong here?
You can take a photograph of a person, and you may own the copyright to the photograph. But that person that you take a photo of has rights. So if I were this photographer, it would be appropriate to say to Jay-Z's team: “Hey, can we enter into a license? This is what I want to do.” And if this photographer has a longstanding relationship with Jay-Z, as it seems that he does, it's possible that they could have worked something out. But what the photographer did here was inappropriate. He's taking these images that he took previously, and—without permission, without getting a license—he's using them on goods, on merchandise, for commercial gain. And then in addition to that, he's entering into sublicenses, which means that he is saying to other people, “I have this right, and I have the permission to sublicense this to you. You can use this on whatever thing you’re doing.” That's an additional layer of inappropriate conduct. And it violates both statutory rights—a statute is a written law that's passed by a legislative body—and there's also a common law right in California, which is a body of law based on legal precedents, that this photographer is violating.

If Mannion was only selling prints, and not merchandise, would he be legally protected?
No. Because even though he may have the copyright for the image, the person depicted has the right of publicity. Photographers are hired all the time to take photographs of musical artists. And oftentimes, it's with a specific purpose. Unless you have that person's explicit permission to take these photographs and sell prints, you can't do that. 

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I'm sympathetic to the photographer, too. I understand photographers have to make money with their work. But it would be similar to somebody using your face on a T-shirt and selling it and having no conversation with you about it. Let's just say that this person is your friend. And maybe you've done some photoshoots for your bio or something. And then they start selling these shirts. It’s a similar situation.

In the complaint, Jay-Z and his attorneys allege that Mannion has asked for tens of millions of dollars to stop selling these photos. I didn’t see any proof of that assertion. Can you unpack what might be going on there?
Typically, you wouldn't attach exhibit documents to a complaint. So let's say, hypothetically, that there's an email or a letter between Mannion and Jay-Z's team where Mannion makes his request, either himself or through his agent. This is not typically something that you'd see in a complaint. But what would happen is after a response to the complaint is provided, there's a production of documents, where Jay-Z's legal team would maybe demand this letter or this request from Mannion, or maybe they already have it. 

Realize that oftentimes, when you read a complaint, the [one] party may have not responded yet. So the other party may have a responding document that has additional facts. I'm not really sure as to why [Mannion] would demand that amount. I could just hypothesize: Let's say Jay-Z paid him a really low dollar amount for using that image that he took as an album cover. Maybe that's why he's demanding this additional money. I'm not sure. I don't think he’d be entitled to it. 

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How might Mannion and his legal team respond to this complaint, and what arguments could they make on his behalf? 
If I was defending him, I would probably point to the First Amendment. I would say that under the artistic expression doctrine, the photographer is using the photograph as an artistic work. Maybe this photographer is an artist that displays his work in galleries, and he's displaying it on his website for the purpose of artistic expression and selling himself as an artist rather than selling commercial goods. 

Interestingly, it doesn't usually take a lawsuit to halt people from engaging in the kinds of actions that Mannion is [allegedly] doing. Usually it goes to the point of a demand letter and people stop. So it's interesting to me that this has proceeded to a full lawsuit. It makes me think that Mannion must have some kind of defense. I can't foresee somebody just willfully engaging in this activity with an artist that is this big without some kind of defense. Because the risk and the damages, it's too high, and the cost to have to go to court, it's way too high.

Based solely on the complaint—which, of course, only tells one side of this story— who do you think would win this lawsuit, if it were to go to trial?
It's very, very clear—based on the complaint and the facts alleged—that Mannion violated both the statute and Jay-Z’s common law right to publicity. But you never know. People can allege whatever they want in a complaint, but you never know until you really dig in.

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Jay-Z is seeking a preliminary and permanent injunction against Mannion. Can you explain, in layman's terms, what that means, and what it would force Mannion to do? 
Jay-Z is requesting that Mannion stop using his name, likeness, identity, and persona—period. People get confused about what the word “injunction” means, sometimes. It just means either the court causes someone to do something, or stops somebody from doing something. And based on the complaint, he'll definitely get the injunction.  

Jay-Z is seeking a wide variety of damages. Do you think he’ll get them?
If all the allegations are true, I think Jay-Z will definitely get damages. If Mannion has been conducting this business for a really long time and has grossed a lot of money, it’s going to be quite a lot of money. I think millions. It's going to be so much money that, I think, this will probably settle. It's not going to go to a full trial. 

To an outsider, this suit might seem like an exercise in punching down. Jay-Z is one of the wealthiest musicians on the planet. Mannion is an acclaimed photographer, but in the grand scheme of things, few people have ever heard of him. Jay-Z isn't just trying to get him to stop selling these photos—he's also going after his money. Because of that, do you think that Jay-Z might be running any reputational risk here?
I don't think so. If you talk to a reasonable person and explain the facts and say, “Hey, if somebody used your face on a T-shirt and sold it, how would you feel about that?” I think it's pretty understandable to any human being that that's not something that would be permissible. And then if you really dig into how entertainers make money, if you're in that business at all, you understand the value of somebody's brand and their face. And a lot of the time, that's a huge component of how they brand themselves and how they make money. I don't think it's going to be a reputational issue at all.

I'm sympathetic to the photographer, too. I think it's kind of a lesson, to a certain extent, to photographers: If you're going to take pictures of somebody for an album cover, you can prevent this from happening entirely by being prepared and drafting an agreement of some kind that you give to the artist and say, “After we're done with this, if I ever publish a book, can I have permission to use this? If I want to put this on my website, can I have permission to do this?” And then everybody’s happy.

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