On October 12, 2018, Gigi Hadid posted a photograph of herself on Instagram. The New York company, X-clusive Lee, Inc. (“X-clusive”), that allegedly owns the copyright to the photograph has since filed a copyright infringement lawsuit against the model seeking an injunction, statutory damages, any profits realized from the publication of the image, and attorney fees and costs. The lawsuit arises out of X-clusive’s allegation that Hadid uploaded this copyrighted photograph to her social media account without license or permission from X-clusive.
Gigi Hadid is perhaps best known for her modeling for the likes of Versace, Chanel, Eli Saab, Fendi, Marc Jacobs, Anna Sui, Miu Miu, Fenty, as well as, others. She has also starred in advertising campaigns for Guess, Versace, Topshop, Stuart Weitzman, and others. Currently, Hadid’s Instagram page has more than 47 million followers. At the time Gigi posted the photograph in question, her Instagram page had over 44 million followers. The disputed photograph received more than 1.6 million likes before it was taken down by Hadid.
The complaint was filed in federal district court in Brooklyn, New York. Therein, X-clusive cites at least 50 “unaccredited photographs” that Hadid had allegedly published to her Instagram account. These photographs include Gigi in public, at press events, or on the runway. The complaint further accuses Hadid of acting willfully, noting another lawsuit filed against the model in 2017 based on very similar facts. In that case, Hadid had published another copyrighted photograph of herself to her social media accounts without permission. However, that case settled out of court prior to the parties conducting discovery.
In an unusual action, lawyers on behalf of Hadid filed a letter addressed to Judge Chen, the presiding judge in the case, requesting a “pre-motion conference on an anticipated motion to dismiss.” In this letter, Hadid’s lawyer sets forth numerous arguments as to why Hadid is not liable and this litigation is not sustainable. First, the letter cites to a recent Supreme Court case, Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 888 (2019), which sets forth that a copyright must be registered in order to bring an action for infringement thereof and that registration occurs when the Copyright Office registers the copyright, not when the application is filed. Since X-clusive’s copyright appears to remain a mere application and not yet a registration, X-clusive cannot maintain suit for infringement.
The letter also points out that X-clusive’s complaint does not name or point to any particular individual photographer who actually snapped the photograph in dispute. Further, the complaint does not explain the relationship, if any, between the photographer and X-clusive. Rather, the complaint merely states that X-clusive is the copyright holder for the photograph. In this way, the letter argues, the complaint fails to establish facts to allege that X-clusive had a right to bring this action.
Additionally, the letter sets forth Hadid’s fair use argument. In particular, Hadid’s attorney claims that the photograph was not disseminated for commercial purposes and Hadid has not deprived X-clusive of any significant revenue. Interestingly, the model’s attorney argues that Hadid herself contributed to the copyrightable elements of the photographs, that is, Hadid smiled and posed. Thus, the photographer did not attempt “to convey ideas, emotions, or in any way influence the subject’s post, expression or clothing” and therefore, cannot claim a copyright to the photograph. Overall, the correspondence seeks to establish that the paparazzi was taking advantage of Hadid by surveilling her, taking photographs of her every public movement, and selling them for profit. In this manner, the letter goes on, the plaintiff paparazzi seeks to make their living by exploiting Hadid’s image and selling it for profit.
Gigi Hadid is not the first celebrity to face a lawsuit over posting a copyrighted image of themselves to social media. As one example, in 2016, Khloe Kardashian published a photo of herself on Instagram, which was owned by Xposure Photos and exclusively licensed to the Daily Mail. Xposure, in that case, claimed Kardashian’s conduct was egregious because she or someone on her social media team scrubbed the image clean of copyright information prior to posting. Xposure eventually dismissed the case, presumably after a settlement had been reached.
In these cases, the defendant typically argues right of publicity. More specifically, individuals generally have a right to control the use of their own name, image, likeness, and identity. Additionally, individuals are entitled to prohibit others from using the same for commercial gain without permission. However, there is a well-established exception to this general right of publicity for newsworthy subjects or matters of public interest. New York law interprets these phrases quite broadly giving individuals wide discretion in using other people’s identity even for commercial gain when the use is newsworthy. Moreover, New York law specifically protects photographers from lawsuits against right of publicity lawsuits by their subjects. It remains to be seen whether the court will be persuaded by the arguments set forth in the letter filed by Hadid’s lawyers.