August 2, 2019 - Copyright, Fair Use, IP, Litigation

By Winning Motion to Dismiss, Supermodel Loses Chance to Clarify Whether She Can Lawfully Post Photos of Herself to Social Media

A federal district court dismissed a case against supermodel Gigi Hadid for posting to Instagram a photo of herself that was taken by a paparazzo. The reason for the court’s decision was simple: The party claiming copyright ownership of the photo failed to get it registered with the U.S. Copyright Office, a prerequisite to filing an infringement suit against alleged violators.

If the plaintiff in the suit had complied with the copyright registration process and required the court to make a substantive decision,  the court’s opinion would necessarily have had to, as the Hollywood Reporter wrote, clarify a celebrity’s “right to control how others profit from [that celebrity’s] likeness” and address a “battle that involves a copyright law written before the dawn of the internet, before legislators could imagine social phenomena like Instagram’s billion users and hundreds of millions of daily photo uploads.”

The facts of Hadid’s case are common; celebrities are sued by paparazzi for posting photos of themselves to social media all the time. In this particular suit against a supermodel, an independent photo agency claimed Hadid had violated its copyright in a photo of herself when Hadid posted the picture to social media despite the fact that Hadid had arguably contributed to the image by smiling for the photo, selecting the outfit she’s wearing in it, and even cropping the photo for posting.

The suit had the potential to test legal theories, such as the “fair use” doctrine, that could protect celebrities from copyright infringement liability for posting  paparazzi-taken photos of themselves to social media. Although those theories weren’t tested this time around, “it’s an imminent fight that could spark the type of legal rethinking needed when the old rules fail to accommodate new realities.”