Gigi Hadid, Paparazzi, and the Intersection of Copyright Laws and Fair Use on Social Media
In what is becoming a growing trend, paparazzi are bringing legal action against the celebrities they take photos of, and not for the usual reason—i.e., destruction of camera equipment.[1] Instead, paparazzi are bringing suits against their subject matters for violating their copyright. Celebrities who have posted photos of themselves taken by the paparazzi on social media, including Jennifer Lopez, Jessica Simpson, and Khloé Kardashian, have found themselves being sued for copyright infringement.[2] Celebrities typically settle with rights holders, as most suits never make it past preliminary motions, as with the three aforementioned examples.[3]
More recently, a recent lawsuit filed against Gigi Hadid resulted in pushback on Hadid’s part. The photo agency Xclusive-Lee filed a lawsuit in the Eastern District of New York in January of this year alleging a photo that Hadid posted on her Instagram account violated its copyright over the image.[4] In its complaint, Xclusive-Lee referenced a prior lawsuit brought against Hadid for copyright infringement by paparazzo Peter Cepeda as proof that Hadid knew what she was doing was in violation of copyright law when she posted the photo.[5] Instead of settling with Xclusive-Lee like she had with Cepeda, Hadid and her attorneys argued in their motion to dismiss that her use of the photo constituted fair-use.[6] The limitations of a copyright under fair use are listed in Section 107 of the Copyright Act.
Under Section 107 of the Copyright Act, four factors are weighed in deciding if a defendant’s use of the copyright work constituted fair use: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.[7] Hadid’s fair use argument contends all four factors are in her favor and that “[a]ccording to [Xclusive-Lee’s] complaint, [Hadid] merely reposted the photograph to her Instagram page and made no effort to commercially exploit it. Her reposting thus reflected a personal purpose different than the photographer’s purpose in taking the photograph, which was to commercially exploit [Hadid’s] popularity.”[8]
In the above portion of her argument, Hadid’s focus was on the first element of § 107, “purpose and character of the use.” In analyzing the purpose and character, courts look to what extent the work is transformative and to what extent the work alters the original work with new expression, meaning or message.[9] Hadid argues that it was a transformative use when she posted the photo of herself on Instagram because the nature of the use was social, not commercial.[10] In their opposition to the motion to dismiss, counsel for Xclusive-Lee pushed back on Hadid’s argument of her posting being transformative, saying that it “is not even close to being transformative,” and claimed that Hadid’s fair use argument is a “blatant attempt to rewrite established legal doctrine.”[11] While not what some may think is a traditional meaning of transformative, Hadid is positioning an interesting argument on the nature of copyright limitations under fair use as applied to social media.[12] Should a carveout be granted in fair use for posting photos of yourself on social media without permission of the rights holder? On one hand, there might be a pull to the side of fairness and equity where it makes sense to allow a celebrity to post photos of themselves on social media even if they don’t have the rights because those are photos of themselves. On the other hand, there might be thoughts about the cynical reality of the economics of social media. Even though there isn’t a direct economic gain, the posting of the photo goes to the overall boosting of a celebrity’s profile and then eventually their wallet.
Ultimately, the case was dismissed in favor of Hadid in July, because Xclusive-Lee had yet to secure the copyright registration for the photo by the time it filed the lawsuit against Hadid.[13] The dismissal was granted as a result of the Supreme Court decision this past March in Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC et al., which ruled that the registration goes into effect when the Copyright Office grants the registration.[14] Attorneys for Xclusive-Lee have said that they plan to bring the suit again after the Copyright Office grants copyright registration for the photo, so we’ll have to wait until then to see if Hadid’s argument will be granted. [15]
Footnotes
