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Gigi Hadid Wants Court To Toss Copyright Infringement Claim Over Instagram Photo
April 5th, 2019
The attorney representing supermodel Gigi Hadid is calling a New York company’s copyright infringement claim against her for posting a photo of herself on Instagram “meritless” and is ready to ask the court to throw out the case.
John C. Quinn, partner at Kaplan Hecker & Fink, has requested a pre-trial conference in anticipation of a motion to dismiss Xclusive-Lee’s complaint.
“A company that profits from surveilling and photographing celebrities has falsely accused Gigi Hadid of copyright infringement,” Quinn said in a statement. “It is one thing for paparazzi to exploit Ms. Hadid’s fame and image for their own profit, but it is quite another to bring a meritless copyright case in an effort to shake her down.”
In January, Xclusive sued Hadid, alleging she “copied and uploaded” its copyrighted photograph to her own social media account “without license or permission.” The company is asking the court to award statutory damages, any realized profits, attorneys’ fees and costs, and an injunction.
Hadid later deleted the photo from Instagram, but it received 1.6 million likes first, according to the complaint.
In a three-page letter to Judge Pamela K. Chen of the U.S. District Court of the Eastern District of New York, Quinn outlines the arguments he will pursue in the motion to dismiss, beginning with the contention that Xclusive didn’t even own the copyright when it filed the complaint — a requirement under the law.
The letter also contends that copyright rights attach to the author or co-authors of the work, but Xclusive’s complaint never mentions the name of the photographer.
The bulk of Hadid’s argument — and the most interesting legally — is that her posting of the photo was fair use, which would mean it was not a violation of copyright. Under the four prongs of the fair use test, Hadid’s attorney argues that all lean in the supermodel's favor.
The first element of the fair use test looks to the use's purpose and character. Here, there was no commercial use, which tends to favor fair use.
The second factor considers the nature of the copyrighted work, and Hadid maintains that the fact that it was a quick snapshot in public — not a studio setting — leans toward the idea that the photographer was not attempting “to convey ideas, emotions, or in any way influence [the subject’s] pose, expression, or clothing.” In fact, the argument goes, because Hadid stopped and smiled, she actually contributed the aspects that copyright law protects.
The third part of the fair use test examines the amount and substantiality of the work used. Here, it was a cropped image focused more on Hadid and her contributions to the photo than any aspects offered by the photographer, such as the framing of the shot, according to Quinn.
The final aspect of the test is the effect upon the market, which has been called the “most important element of fair use” by federal courts. Notably, writes Quinn, Xclusive doesn’t even allege that the supermodel “deprived the company of any, much less ‘significant,’ revenue.”
One last argument presented by Hadid’s attorney is that she had an implied license to use the photo “at least in ways that do not interfere with the photographer’s ability to profit” because she had agreed to be photographed.
With several similar lawsuits that have come up over the last few years, this case will be intriguing to watch. Chen's decision — if we get that far — could clarify the rights celebrities have to paparazzi images of themselves and put an end to lawsuits such as these once and for all.
Read this at Forbes.