Copyright Infringement Suit Against Supermodel Gigi Hadid Dismisssed

Judge Pamela K. Chen from the Eastern District Court of New York dismissed on July 18 a copyright infringement suit filed by XClusive-Lee, Inc. against supermodel Gigi Hadid, claiming that a picture she posted on her Instagram account was infringing.

Hadid’s Instagram account currently has almost 49 million followers, interested in viewing family pictures, fashion magazines cover featuring Hadid, fashion shoots and fashion photographs. Hadid posted in October 2018 a cropped version of a photograph of her taken the day before by a paparazzi outside Vogue’s Force of Fashion conference, where Hadid was part of a panel. 

The original version of the photograph showed Defendant wearing a denim jacket and shorts, a small handbag, high heels, jewelry and make up, smiling at the camera in an outdoor urban setting, probably outside the New York City studio where the conference took place. 

The photo posted by Hadid on social media was cropped mid-thigh. She added as comment:”all smiles post #ForceOfFashionpanel @voguemagazine.wearing #messikabygigihadid mini-cuffs and mono earing”, referring to a line of jewelry bearing her name which is sold by a French jeweler.  The “mono earrings”referred to in the post retail at $5,710. 

Xclusive-Lee, Inc., the company which owns the copyright to this photograph, filed a copyright infringement suit against Hadid in January 2019, claiming Hadid “copied and posted Copyrighted Photograph to Hadid’s Instagram account without license or permission from Xclusive-Lee.” It claimed that it was entitled to statutory damages, including any profits realized by Hadid attributable to the infringement, pursuant to 17 U.S.C. § 504. 

As a reminder, a work is protected by copyright, if it is fixed in a tangible medium and if it is original enough, even if it is not registered. However, a registration is required if filing a copyright infringement suit, and the Supreme Court recently held in Fourth Estate Public Benefit Corp. v. Wall-Street. Com LLC  that § 411(a) of the Copyright Act requires that copyright registration occurs “only when the Copyright Office grants registration” (at 888).

At the time of filing the suit, Plaintiff had applied for a copyright in the photograph, but had not been granted registration. Plaintiff argued that it had filed the copyright infringement suit before the Fourth Estate decision, but the EDNY rejected the argument as the Court cannot decline applying a Supreme Court decision “merely because the Supreme Court decision was issued after the filing of the compliant at issue in this case.”

 

The case was dismissed because the photograph was not registered with the Copyright Office.

That said, posting a photograph protected by copyright on Instragram without permission is copyright infringement. The Complaint noted that Hadid’s Instagram account featured several examples of “uncredited photographs of Hadid in public, at press events, or on the runway” and that “[m]ost if not all of these photographs were posted by Hadid without license or permission from the copyright holder.” 

Could it be fair use? Hadid may have used this photograph in order to contribute to the promotion of her jewelry line. Therefore, the character of the use, one of the four fair use factors, may have been for commercial gain, not for the sake of commenting or news reporting for the Vogue conference.

The second factor, the nature of the work, would probably be in Hadid’s favor, as it is not very creative. Hadid did not use all of the work, but cropped it, but she nevertheless substantially used the work, and so the third factor could have been in Plaintiff’s favor as well. The fourth factor, the economic effect on the value of the work, measures the effect of the use on the market. The picture could be licensed to be used on her Instagram account in order to promote a commercial line, and so it is possible that the fourth factor would have been in Plaintiff’s favor. 

It could it be argued that this particular photograph was not protected by copyright, as a work must be original enough to be protected. The photo was taken in the streets of New York, and must have been taken quickly, thus leaving little time for the photographer to make choices. Hadid deftly takes the pose, and it can be argued that it is her professional experience which contributed to the picture being original, unless the pose was directed by the photographer.

If a copyright registration had been granted before filing the case, the suit would likely not have been dismissed, as fair use is fact-based and thus is unlikely to be decided when granting a motion to dismiss.

However, if a copyright registration is mandatory for filing a copyright infringement suit, the Copyright Office may start to examine more closely whether a particular work is indeed original enough to be protected by copyright…

Take-away: Plaintiff must have a valid copyright registration before filing a copyright infringement suit.  

Photographer Claims Versace Removed CMI in Instagram Post of Jennifer Lopez

Photographer Robert Barbera has just filed a copyright infringement suit against Versace USA in the Southern District of New York, claiming that the fashion company did not have the right to publish, on its Instagram account, a photograph of Jennifer Lopez wearing Versace [see here]. [This is the second time in a row I am mentioning J-Lo in a blog post…]

Barbera registered the photograph with the Copyright Office. He did not license it to Versace.

Versace’s Instagram account is used to promote the brand and features many pictures of products and models, presumably taken as part of the company’s marketing and public relations strategy. The account is obviously used as a promotional tool. 

Is Versace in hot cappuccino? 

Copyright Management Information and Moral Rights  

Barbera claims copyright infringement and also alleges that Versace “intentionally and knowingly removed copyright management information identifying Plaintiff as the photographer of the Photograph,” thus violating 17 U.S.C. § 1202(b), which forbids to intentionally remove or alter any copyright management information without authorization of the copyright owner.

Copyright management information (CMI) includes, under Section 1202, the “title and other information identifying the work, including the information set forth on a notice of copyright… [t]he name of, and other identifying information about, the author of a work [and] [t]he name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.”

This is an interesting claim as the Copyright Office has just published its study of attribution and integrity rights in the United States. It addresses the issue of CMI and notes (p.86) that “[i]t is common practice in the digital world for CMI to be stripped from works, disconnecting a work from its authorship and ownership information” and further notes that the provisions of section 1202 “provide a form of quasi-moral rights protection by effectively preserving the names of authors, owners, and other creators in connection with their works.”

In our case, Plaintiff claims that Versace removed the CMI “intentionally, knowingly and with the intent to induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyright in the Photograph. Versace also 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.”

Could First Amendment be a Defense?

What about originality? The photograph has been registered and thus was deemed original enough to be protected by copyright. Yet, the pose, the angle, the light, are all quite mundane. What is original in the picture is the striking pattern of the Versace outfit worn by Miss Lopez.

While fashion designs are not protected by copyright in the US, with a few rare exceptions, patterns are protected and the one adorning the cat suit outfit featured in the allegedly infringing photograph is certainly original enough to be protected by copyright. However, Versace could not claim infringement as the picture is protected by the First Amendment: it was taken at a public event, the 2018 MTV Video Music Awards, and Versace used #VMAs as a hashtag. Could posting the picture on its corporate account be protected by the First Amendment? It certainly could be argued.

What about J.Lo.? By thus appearing in the Versace account, dressed in a Versace outfit, her likeness is used for commercial purpose. If this use is unauthorized, she could file a right of publicity suit. However, Versace could then also use the First Amendment as a defense.

However, it is possible, even likely, that the famous singer and actress has an agreement with Versace and that therefore the use of her likeness is authorized. She is one of the #Versacecelebrities, another hashtag used in the post, and has been wearing the brand for years, making headlines sometimes doing so. She was recently nominated CFDA's 2019 Fashion Icon. I won’t write about her in my next blog post. 

Image is courtesy of Flickr user irene. under a CC BY-ND 2.0 license. 

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.

Gone in just ten seconds?

Every new technology seems to pose challenges for legislators - whether its copyright and other intellectual property issues, privacy, threats to security, morality, children, and indeed the uses the new technology will be put to by the great unwashed.

The latest social media phenomena is the picture sharing app Snapchat - you can share pictures - but the recipients can only see the image for ten seconds - and then it's gone - forever (well, unless you are techno savvy and can grab it). It's free to download and has grown hugely - and the company behind the app is now valued at more than $500 million - and has raised $50 million in venture capital - with an estimated 5 million using the service daily - and is growing rapidly with 200 million images now shared every day according to the company. The app is the brainchild of Evan Spiegel and Bobby Murphy, who met at Stanford University, and the spark for the app was watching college friends frantically trying to repair their digital history by removing and de-tagging embarrassing images from social media networks before important job interviews or even marriages. The company says its users share four times as many images each day as users of Facebook's Instagram (which Facebook only recently acquired for $1 billion). 

One popular feature on Snapchat appears to be the sharing of 'selfies' - now I can't promise to be right here - but use your imagination - and remember that 54% of users have received 'inappropriate' images (for all of 10 seconds but that can be more than enough) and 47% had received nude images. Ho hum!


But what of copyright? Undoubtedly a large proportion of the images shared will be self generated (literally!) but some will not be and may well be images owned by and valued by others - whether they are professional photographers, news services, archive and image business like Getty, or private individuals. Will they care if their images are used in a mass sharing - but are visible for only 10 seconds to each recipient? Will they even be able to prove any infringement as the 'evidence' will probably have gone after 10 seconds? Has any damage actually been done for such a transient use? But what happens if users 'commercialise' images for advertising and marketing? And if content owners DO care (and I am sure they will), how does current copyright law facilitate the right to protect copyrights and ultimately bring an action - when the 'copy' is time limited to a ten second life only - unless the recipient pro-actively saving the snap. Is a copy made? Is a copy issued to the public? Is there a 'communication'? 

And what next? Instagram and Twitter's Vine already have video sharing services for very short clips (pint sized popster Justin Bieber seems particularly fond of the former service -  he posted a very random clip  on Instagram the day its video service launched, and yesterday posted a (somewhat blank)  video about falling down stairs) and they to will provide ever more challenges - until they are superseded by the next fad. I was asked to give professional advice on the legal ramifications of six second videos from the Glastonbury Festival posted on Vine yesterday - privacy, copyright, performers rights - all came into play!

Any [polite] thoughts, comments and opinion are, as ever, welcome!