New York Fashion Company Sued Over Use of Photograph on Instagram

On September 27, 2016, Matilde Gatoni, a French-Italian photographer based in Milan, filed a copyright infringement suit against New York fashion company Tibi in the Southern District of New York (SDNY). Plaintiff alleges that Tibi reproduced without authorization one of her photographs (the Photograph) by posting it on its Instagram account.

Ms. Gatoni regularly posts photographs on her Instagram account. On August 26, 2016, she posted a picture of a building in Essaouira, Morocco. The building is seen from the street, where it commands a corner and the Photograpgh allows the viewer to see it on both sides, which are painted in blue, yellow, white and pink. A woman wearing a long flowing dress in the same color tones of the walls is seen from the back at the right of Photograph. The posting on Instagram was the first publication of the Photograph.

Defendant Tibi also has an Instagram account. The complaint alleges that the fashion company reproduced the Photograph by cropping it and posting it on its own Instagram account, without Plaintiff’s authorization. Exhibit D shows the picture as allegedly posted on Instagram. The picture has been cropped on the right side and on the lower side,  cutting the woman off and making the pink part of the wall the center of the image.

Plaintiff is seeking damages and Defendant’s profits pursuant to 17 U.S.C. § 504(b) for the alleged infringement, and statutory damages up to $150,000 per work infringed for Defendant’s willful infringement of the Photograph, pursuant to 17 U.S.C. § 504(c).

Complaint also alleges that Tibi “intentionally and knowingly removed copyright management information identifying Plaintiff as the owner of the Photograph,” in violation of Section 1202(b) of the Digital Millennium Copyright Act, which prevents the unauthorized intentional removal or alteration of any copyright management information. Plaintiff alleges that such removal was done “intentionally, knowingly and with the intent to induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyrights in the Photograph [and that] Tibi … knew, or should have known, that such falsification, alteration and/or removal of said copyright management information would induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyright in the Photograph.”

Plaintiff seeks Plaintiff’s actual damages and Defendant’s profits, gains or advantages of any kind which can be attributed to the falsification, removal and alteration of copyright management information, or statutory damages of at least $2,500 and up to $25,000 for each instance of  false copyright management information and/or removal or alteration of copyright management information.

Copyright registration of the Photograph is pending, but there is no doubt that it will be granted, as the picture meets and exceeds the threshold of originality. Copyright registration is necessary when suing for copyright infringement, but is not necessary to protect one’s work by copyright, nor it is necessary that the work contains a copyright notice. It suffices that the work has been fixed and that it is original.

The case will probably settle, but it is interesting to see that copyright infringement suits are still being filed against Defendants who found a work on social media and allegedly used it without permission. Tibi’s Instagram account alternates posts of Tibi’s own models with random photographs of buildings, furniture or landscapes, a sort of digital mood board echoing the colors and shapes of the garments. Both the photos of Tibi’s models and the random photos garner appreciative comments from Instagram followers. The fashion industry is indeed hungry for images and Instagram plays an increasing role in fashion companies ‘marketing mix.

Should Instagram put in place a proprietary licensing program? This may allow companies interested in featuring a particular photographs an easy way to secure a license.

Image courtesy of Flickr user Franklin Heijnen under a CC BY-SA 2.0 license.