Model Gigi Hadid is facing a copyright infringement suit for posting a picture of herself on her Instagram account. The problem — someone else (a paparazzi photographer) owns the copyright to the image.
Allegations of Copyright Infringement
Reposting photos frequently occurs on social media, and it rarely raises an eyebrow. However, when public figures do so, the images can be valuable, and photographers want their share of any revenue generated. Approximately 1.6 million people commented on or liked the photo in the few days after Hadid posted it, according to the suit.
In its complaint against Hadid, Xclusive-Lee, Inc. alleges that Hadid “copied and posted [the] copyrighted photograph to Hadid’s Instagram account without license or permission from Xclusive.” The photo agency’s suit, which was filed in a New York federal court, seeks monetary damages, as well as a court order directing Hadid to immediately and permanently refrain from further infringing its rights by “copying and republishing the copyrighted photograph without consent or otherwise infringing [its] copyright or other rights in any manner.”
In support of its, Xclusive maintains that Hadid “had first-hand knowledge that copying and posting photographs, of herself … to her Instagram or other social media accounts that she did not properly license or otherwise receive permission from the copyright holder constituted copyright infringement.” In 2017, the model posted an image taken by photographer Peter Cepeda, who later filed suit because she posted in without obtaining his permission.
According to the complaint, “the facts alleged in Cepeda’s [case] are nearly identical to the facts alleged in the present case, including the allegation Hadid copied and posted [the] plaintiff Cepeda’s copyrighted photograph (of Hadid on a public street in New York City) to Hadid’s Instagram and Twitter accounts without license or permission from Cepeda.” The 2017 copyright suit ended in an out-of-court settlement.
Xclusive further notes that Hadid’s Instagram contains additional examples of allegedly uncredited photographs. “Most if not all of these photographs were posted by Hadid without license or permission from the copyright holder,” the suit alleges.
Celebrities’ Right of Publicity
Publicity rights have been protected since the advent of the Hollywood celebrity in the second half of the 20th century. The right of publicity typically refers people’s legal right to control the commercial value of their image, name and likeness. The use of any of those three things without the permission of the individual first would be a violation of his or her publicity rights.
For instance, under N.Y. Civ. Rights Law § 50. Right of Privacy:
A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.
New York law, N.Y. Civ. Rights Law § 51. Action for Injunction and For Damages further provides:
Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof.
Rights of publicity have become more complex with the proliferation of social media. Hadid responded to the suit against her via social media, calling it absurd. “Yesterday I heard from my management that I am being ‘legally pursued’ for my last (now deleted) Instagram post,” Hadid posted to Instagram. “I posed/smiled for the photo because I understand this is part of my job…but these people [paparazzi] make money off us every day. LEGALLY stalking us day in and day out — for nothing special.”
While celebrities can argue that paparazzi photos only have value because of their status as public figures, statutes and case law surrounding publicity rights generally make an exception for the use of a name, voice, photograph, or likeness in connection with matters that are newsworthy or otherwise in the public interest. In New York, courts have held that “newsworthiness” is to be broadly construed. Moreover, as described by the Court of Appeals of New York in Messenger ex rel Messenger v. Gruner & Jahr Printing and Pub., 727 N.E.2d 549 (NY 2000), “newsworthiness includes not only descriptions of actual events, but also articles concerning political happenings, social trends or any subject of public interest.” Accordingly, asserting the right to publicity as a defense to a copyright infringement suit can be an uphill battle.
If you have any questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Ron Bienstock, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.