Insta-infringement


Author: Eddie Powell, Thomas Edwards


Eddie Powell, Partner, Fladgate LLP (epowell@fladgate.com)

Thomas Edwards, Trainee Solicitor, Fladgate LLP (tedwards@fladgate.com)


 

Famous fashion model Gigi Hadid is being sued in the USA for copyright infringement, and not for the first time.

Hadid is widely considered to be one of the most well-known models in the world, and has appeared in all of the major fashion publications over the last year. However, Hadid has found herself in trouble for reposting paparazzi images of herself on Instagram without the permission of the photographer.

It may seem a strange concept, but photographs taken of celebrities do not generally belong to the celebrities, even though they are the subject of the photo. Instead, the image belongs to photographer. This reflects the simple concept that it is the creator of the works who the ownership of any such works. In the paparazzi industry, the photographer often licenses images that they capture to news sites and magazines, and that is how photographers make their money. The licence to these news sites is frequently exclusive, meaning that any unauthorised publication of the image will be severely detrimental to the commercial value of the image.

A number of celebs have been accused of taking paparazzi images from the internet and reposting them to their social media accounts without permission, with no credit given to the creators of those photographs. Celebs post a huge amount of content and images on Instagram, and a percentage of these are thought to be photos taken from the press (Hadid herself is said to have well over 50 such images on her social media channel). Sometimes the celebrities may have the permission of the photographers to repost such images, but many times they do not.

That being said, the law is clear that, whilst the subject of the photograph has some rights in how the photo is used (for instance it cannot be used to express promotion for a commercial brand without the permission of the model), they do not have rights to the copyright in the picture, which is owned by the photographer. This is the same position under UK law, by virtue of the Copyright, Designs and Patents Act 1988. Under this law, the creator of certain works has the rights to control how those works are used, and the right to be credited wherever those works are used. The right is automatic and arises when the work is created.

Hadid is now being sued in New York for a breach of US Copyright Laws. The photographer’s company (Xclusive-Lee, Inc.,) claims Hadid ‘wilfully and intentionally’ breached the law by reposting the image online. One piece of evidence they have given for Hadid’s knowledge and intention of the breach is the fact that in 2017 Hadid was previously sued for the exact same offence. In that instance, which Hadid eventually settled out of court, Hadid was alleged to have removed a watermark from a photo before reposting it on her social media. Xclusive say that because of this previous litigation, Hadid was well aware of the law, and therefore infringed the copyright of Xclusive with no regard for their ownership in the photo.

Hadid has addressed these legal cases through her social media channels. One comment made by Hadid was, “these people make money off us everyday, LEGALLY stalking us day in and day out”. A large amount of public support was given to Hadid, as fans expressed their incredulity that Hadid could not repost a photo taken of her without permission, even though she did not give permission for the photo to be taken in the first place.

This is relevant to non-supermodels too. It is worth remembering that images, even when published on social media, are not free for you to use. It is always worth checking where images come from and preferably using a reputable photo library before selecting pictures for online use.

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