By: Alexandra Rusyniak
Over the last few years, lawsuits have come against celebrities like Nicki Minaj, Khloé Kardashian, Ariana Grande, and Jennifer Lopez for posting photographs taken by paparazzi onto their social media accounts without permission or license to repost the photos. Top model Gigi Hadid follows as she is recently the center of attention in a copyright infringement case after being sued by Xclsuive-Lee, Inc. for reposting a photograph of herself onto her Instagram account @gigihadid in October of 2018.
Hadid’s defense claimed that her use of the photograph fell under the guidelines for fair use, or that she reasonably used Xclusive-Lee’s material without consent. The four basic guidelines for fair use follow as:
- The purpose and character of use – Does the new work have a different meanings from the original work? Is there added value?
- The nature of the copyrighted work – Claims for fair use are often stronger for published and factual works.
- The amount and substantiality of the portion taken from the original work – Is the most memorable part of the original the focus of this new work?
- The effect of the use upon the potential market of the original work – Does the new work deprive the original copyright owner of income?
In Hadid’s defense for fair use, her claims follow that the character of her use did not exploit the photo for financial revenue because it was posted onto her personal Instagram account, that the nature of the photograph was documenting her own life and was already published online, and finally, that she cropped the photo by 50% to only show her contributions to the picture. Additionally, her defense asserted that Xclusive-Lee lacked the most basic elements for a copyright infringement case against her because she substantially contributed to the authorship and value to the photograph by posing for the photographer.
Many following this case were prepared for a battle to ensue between copyright infringement and fair use allegations. On July 18th, Judge Pamela Chen, of the federal court in Brooklyn, NY, decided that the paparazzi agency did not have a case because they were not “formally granted registration of a copyright from the copyright office at the time the plaintiff filed the case [January 28, 2019]” and declined a refiling of the suit. The judge cited that her dismissal of the case based on the March 2019 verdict by the U.S. Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com resolving that a copyright must be fully registered for a plaintiff to pursue damages in court. With this ruling, a copyright cannot be held up in the application process at the time of legal action as “registration is a prerequisite to suit.” Also, the plaintiff cannot refile for legal action if they have already filed for damages before receiving official copyright registration. Before this ruling, it fell under the judge’s discretion to determine if beginning the process of filing a copyright application was adequate to pursue legal action for copyright infringement. Even though the paparazzi agency filed their case months before this Supreme Court verdict, the judge made it clear that the rulings of the Supreme Court must immediately be followed. Whether or not Gigi Hadid had a strong case for fair use and partial ownership over the copyright, Xclusive-Lee’s case was doomed as soon as this Supreme Court ruling was decided. Therefore, this recent development proves to be a lesson in the importance of obtaining full copyright registration before pursuing any legal action.