Readers may remember a previous post about model Gigi Hadid being sued for copyright infringement after posting picture of herself on Instagram. Photo agency Xclusive brought a civil complaint against Hadid in the US District Court for the Eastern District of New York seeking a trial by jury and damages for copyright infringement. In the claim Xclusive argued that Hadid wilfully and intentionally infringed their copyright in disregard of their rights. Hadid took to social media to voice her anger, arguing that it was wrong that fan accounts are taken down and photographers were demanding money for the photo she had found on twitter. These types of disputes are on the rise with other stars such as Ariana Grande being pursued for the same. Kim Kardashian has faced the issue by hiring her own photographer and granting her fans permission to freely repost those photos. Hadid, on the other hand, is taking the issue head on. In a 20 page motion to dismiss Hadid’s lawyers argued the use of the photograph was permissible under fair use and consistent with an implied license. However, Xclusive wasted no time in filing an opposition to the motion. Here are the main arguements from both sides:
1. Transformative and Commerical Use
Hadid’s lawyers argued that her use of the photo was permissible under fair use, in line with the four key factors. First, they said that Hadid’s reposting reflected a personal purpose different from that of the photographer’s, which was to commercially exploit her popularity, and therefore the use was transformative, and the use of non-commercial in nature.
In the opposition, Xclusive’s lawyers say that “the purported purpose of Hadid in using the Photograph here is not even close to being transformative.” They argue that for fair use, the second work must actually either make some critical use of, or change to, the original work to qualify as transformative. They argued that Hadid posted the photograph in a “barely cropped” form for the purpose of depicting exactly that of the original. They also state Hadid’s motion makes incorrect factual and legal assertions on the basis for commercial use, which they argue she gained by way of a commercial advantage as a consequence of posting the image on her Instagram page, pointing to her amount of followers.
This might be a risky arguement for Xclusive. If they suggest that simply posting on her Instagram is a commerical use - without any direct revenue - simply because she is a famous model and therefore her appearence amounts to commercial use, then would that mean that taking her photo in the first place without her permission was some kind of infringement?
2. Nature of the Original Work
Second, Hadid argues that the photograph in question was a “quick shot in a public setting” with no attempt by the photographer to convey ideas, emotions, or in any way influence the pose, expression or clothing. As such, they argue, the photograph is a factual work, not a creative one. Furthermore, since Hadid smiled and posed for the photo, she contributed to the creativity and originality of the image, pointing to Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) where it was held that elements of originality in photograph include “posing the subjects” and Gillespie v. AST Sportswear, Inc., No. 97 Civ. 1911, 2001 WL 180147 (S.D.N.Y. Feb. 22, 2001) where the jury could find defendant was joint author of photographs where defendant contributed to “clothing” and “poses” of models. Thereby suggesting that Hadid is in fact co-author of the image due to her input of smiling and posing, including the positioning of her hand below her chin, and the photograph was only made possible by her cooperation.
Xclusive’s opposition, however, argues that the photograph is "undoubtedly a highly creative and expressive work", involving a number of creative choices including timing, lighting, angle, and composition. In addition, they say that photographer had to obtain special permission to photograph the street from that particular location. The opposition goes on to say that Hadid’s arguments of joint ownership are “preposterous” and would be like the subject of a biography claiming copyright in the words of the author to describe their life.
Personally, I side with Hadid on this one, the problem with the biography argument is that it would only be preposterous if the subject did not contribute to the work. Hadid is claiming copyright for the creative contributions to the work, not for the factual elements of the work, she is, afterall a model by trade and therefore experienced in posing. If a biographer based their book on the diaries of their subject, then the subject could be a co-author, for example the co-authors of the biographical works of Anne Frank are both Anne and her father Otto.
3. Amount of the Work Copied
Thirdly, in relation to the amount of the work copied, the motion states that Hadid used only 50% of the original photograph since she cropped the image to focus more on her on creative input – her pose, rather than photographer’s framing of her.
Xclusive’s opposition disagreed, arguing that there was minimal cropping of the image and that cropping is not enough to weigh this factor in favour of fair use – pointing to Graham v. Prince, 265 F. Supp. 3d 366, 382 (S.D.N.Y. 2017). In addition, they argue that the crux of this factor is about the quality of what is taken, considering the heart of the material, which cropping would not effect. Interestingly, they assert that Hadid did not make any conscious choice in the crop, as it was likely done by the automatic square cropping within the Instagram app. If this argument succeeds, it could support the arguments made in theprevious post that technologically-enabled creativity should mean a higher threshold for the origianlity requirement in copyright!
4. Damage Caused
Finally, in relation to the effect of the use upon the potential market or value of the copyrighted work, the motion argues that the complaint failed to demonstrate any financial loss, and nor could it since Hadid was posting an image that was already available online and did not claim to make the image available for licence.
Xclusive say that Hadid’s use serves as a market substitute for the photo, because Hadid would have otherwise had to pay a licence fee for her use of the work and potential licensees of the image are no longer incentivised to pay a licensing fee since they can copy the version Hadid posted and "made free".
I agree that Xclusive might have gained the licence fee payable by Hadid for her use of the image, but the fact that she took it from social media in the first place does undermine the argument that she usurped the copyright holder’s market, since it was already freely available in that sense. Perhaps Xclusive don't have their own Insta accout - or they are hoping the judges don't, at least - because they claim that the ability to copy and share is built into Instagram, which is not ture - you can copy as a result of your device or a third-party app but not within Instgram itself. You can share only in a private message that imbeds and links to the original post, but you cannot share directly to your own page without screen-grabbing or using a third-party app.
Perhaps the most controverisal argument presented in the motion, is that the use was permissible since there was an implied licence by conduct. They argued that Hadid encountered the photographer, stopped and permitted the photographer to take her picture by posing and contributing to the protectable elements of the photograph – she made the image possible and more valuable. Therefore, the photo was the result of mutual actions by Hadid and the photographer and in these circumstances, a license can, and should, be implied permitting Hadid to use the photograph—at least in ways that do not interfere with the photographer’s ability to profit. If this argument succeeds in court it will change the way celebrities can use images of themselves under copyright, and Hadid might just have succeeded in ending the saga of cases against celebrities for posting pictures of themselves on their social media.
At this point in Xclusive's opposition, they present quite a serious case of an attitude problem: "In Hadid’s imaginary world of make-believe contracts"... "[her] convenient, novel legal approach runs counter to all prior established legal holdings on the subject matter and is the result of dramatic oversimplification of what may or may not have transpired." They argue that if Hadid succeeds on this point, "the majority of the world’s authors would be obliterated because the only requirement for an implied license would be for the subject of a work that she winked, smiled, nodded, or otherwise communicated her acceptance to the author." [Now, who's living in a make-believe world of convenient dramatic oversimplifaction of what may or may not transpire?!]
Xclusive conclude that Hadid’s legal approach is alarming for its blatant attempt to rewrite established legal doctrine. Well, I quite like the sound of alarming anarchy against Xclusive's copyright claims and out-of-date doctrine... so lets see what happens next!
About the Author
Dr Hayleigh Bosher is a Lecturer in Intellectual Property Law at Brunel University.
This blog was originally posted on The IPKat'a blog here.
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