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Copyright Infringement Suit Against Supermodel Gigi Hadid Dismisssed





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Judge Pamela K. Chen from the Eastern District
Court of New York dismissed on July 18 a copyright infringement suit filed by
XClusive-Lee, Inc. against supermodel Gigi Hadid, claiming that a picture she
posted on her Instagram account was infringing.
Hadid’s Instagram account currently has almost
49 million followers, interested in viewing family pictures, fashion magazines
cover featuring Hadid, fashion shoots and fashion photographs. Hadid posted in
October 2018 a cropped version of a photograph of her taken the day before by a
paparazzi outside Vogue’s
Force of Fashion conference
, where Hadid was part of a panel
The original version of the photograph showed
Defendant wearing a denim jacket and shorts, a small handbag, high heels,
jewelry and make up, smiling at the camera in an outdoor urban setting,
probably outside the New York City studio where the conference took place. 
The photo posted by Hadid on social media
was cropped mid-thigh. She added as comment:”all smiles post #ForceOfFashionpanel @voguemagazine.wearing
#messikabygigihadid mini-cuffs and mono earing”, referring to a line of
jewelry bearing her name which is sold by a French jeweler.  The “mono earrings”referred to in the post
retail at $5,710. 
Xclusive-Lee, Inc., the company which owns
the copyright to this photograph, filed a copyright infringement suit against
Hadid in January 2019, claiming Hadid “copied
and posted Copyrighted Photograph to Hadid’s Instagram account without license
or permission from Xclusive-Lee.” It claimed that it was entitled to
statutory damages, including any profits realized by Hadid attributable to the infringement,
pursuant to 17 U.S.C. § 504
As a reminder, a work is protected by
copyright, if it is fixed in a tangible medium and if it is original enough,
even if it is not registered. However, a registration is required if filing a
copyright infringement suit, and the Supreme Court recently held in Fourth
Estate Public Benefit Corp. v. Wall-Street. Com LLC
§ 411(a) of the Copyright Act
requires that
copyright registration occurs “only when the Copyright Office grants
registration” (at 888).
At the time of filing the suit, Plaintiff
had applied for a copyright in the photograph, but had not been granted
registration. Plaintiff argued that it had filed the copyright infringement
suit before the Fourth Estate
decision, but the EDNY rejected the argument as the Court cannot decline
applying a Supreme Court decision “merely
because the Supreme Court decision was issued after the filing of the compliant
at issue in this case.”
The case was dismissed because the
photograph was not registered with the Copyright Office.
That said, posting a photograph protected
by copyright on Instragram without permission is copyright infringement. The
Complaint noted that Hadid’s Instagram account featured several examples of “uncredited photographs of Hadid in public,
at press events, or on the runway” and that “[m]ost if not all of these
photographs were posted by Hadid without license or permission from the copyright
Could it be fair use? Hadid may have used
this photograph in order to contribute to the promotion of her jewelry line.
Therefore, the character of the use, one of the four fair
use factors
, may have been for commercial gain, not for the sake of
commenting or news reporting for the Vogue conference.
The second factor, the nature of the work,
would probably be in Hadid’s favor, as it is not very creative. Hadid did not
use all of the work, but cropped it, but she nevertheless substantially used
the work, and so the third factor could have been in Plaintiff’s favor as well.
The fourth factor, the economic effect on the value of the work, measures the
effect of the use on the market. The picture could be licensed to be used on
her Instagram account in order to promote a commercial line, and so it is
possible that the fourth factor would have been in Plaintiff’s favor. 
It could it be argued that this
particular photograph was not protected by copyright, as a work must be
original enough to be protected. The photo was taken in the streets of New
York, and must have been taken quickly, thus leaving little time for the
photographer to make choices. Hadid deftly takes the pose, and it can be argued
that it is her professional experience which contributed to the picture being
original, unless the pose was directed by the photographer.
If a copyright registration had been
granted before filing the case, the suit would likely not have been dismissed,
as fair use is fact-based and thus is unlikely to be decided when granting a
motion to dismiss.
However, if a copyright registration is
mandatory for filing a copyright infringement suit, the Copyright Office may
start to examine more closely whether a particular work is indeed original
enough to be protected by copyright…
Take-away: Plaintiff must have a valid
copyright registration before filing a copyright infringement suit.  
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