In a copyright infringement lawsuit filed in January this year, an agency, Xclusive-Lee, alleges that Hadid posted one of its images to her Instagram, which it claims violates the company’s copyright. In a motion to dismiss filed earlier this month, as well as a supporting memorandum, Hadid’s legal team asserts that her posting the image constituted fair use because she contributed to the photo in the form of a smile and her outfit.
The memorandum of support says Hadid didn’t infringe on any copyright “because Ms. Hadid posed for the camera and thus herself contributed many of the elements that the copyright law seeks to protect.” She, the memorandum states, creative directed the photograph, not the photographer who captured her on the streets of New York City.
HADID DELETED THE POST
The team also claims that because Hadid cropped the image when she posted it, she emphasized her “contribution” to the photograph by focusing her followers on her pose and smile, not the photographer’s composition. Typically, photographers have full copyright when they capture an image, particularly in public, and this lawsuit challenges that long-held assumption.
“The minute I create something, I have copyrights,” Tim Hwang, lawyer and director of Harvard and MIT’s Ethics and Governance of AI Initiative, explained to The Verge’s Why’d You Push That Button podcast. “I have rights over that content, and so really anything I create, if it is taken by someone else without my permission and copied and shared, I do theoretically have the right under the law to get it taken down, to control it, to protect and constrain that content.”
But, he notes, “fair use,” means that people can sometimes skirt around copyright, particularly if the person using the photo has meaningfully altered the image in some way, or if the person posting the photo is doing so for a nonprofit entity and isn’t making money off it.
Hadid’s team claims that she isn’t making money off her Instagram post or depriving Xclusive of profits. “Ms. Hadid merely reposted the photograph to her Instagram page and made no effort to commercially exploit it,” the team writes. “Her reposting thus reflected a personal purpose different than the photographer’s purpose in taking the photograph, which was to commercially exploit Ms. Hadid’s popularity.”
The case could not only impact how celebrities treat photos of themselves and paparazzi culture, but also affect what images fan accounts are allowed to repost, too. Some celebrities, like Kim Kardashian West, only post photos they own, specifically so that fans can repost the images without the paparazzi claiming ownership of the images and taking down accounts.
Khloe Kardashian once tweeted that a paparazzi sued her for posting a photo of herself, similar to the lawsuit brought against Hadid. But making the argument that a celebrity contributed to the creative process of a paparazzi-captured image is a novel one that could fundamentally change how Instagram reposts function and what’s allowed on the platform.