January 31, 2019
The international super model and global influencer Gigi Hadid is being sued for copyright infringement as a result of an image she posted on her Instagram feed … of herself!
Hadid, for those of you not so au fait with the “Instafamous” has 45 million followers on Instagram and is part of the current breed of model cum celebrity offspring currently dominating the fashion industry (others include Kendall Jenner, Cara Delavigne and Kaia Gerber). She is being sued by a New York based photographic agency – Xclusive-Lee, Inc – who in their complaint claim that Hadid is “personally responsible for her official Instagram account” and that in October 2018 she “copied and uploaded” to her account (and later deleted) an image of her without licence or permission, that infringes their intellectual property rights. As part of their complaint Xclusive-Lee argue that Hadid should have known better than to post an image in this way as she was also sued in 2017 in relation to a very similar matter. Xclusive-Lee is suing for damages for copyright infringement as well as any profit Hadid may have made from her use of the image.
In October 2018, Hadid herself commented via her Instagram account that she was being “legally pursued” for posting a paparazzi image of herself on her Instagram account, now it is clear that the threat of legal action has ramped up into a full blown claim. We will wait to see how it progresses!
The crux of Xclusive-Lee’s claim is based on its copyright rights in the image. Copyright is a property right that under UK law gives the creators of literary, dramatic, musical, artistic works, sound recordings, broadcasts, films and typographical arrangements of published editions, rights to control the ways in which their works may be used by third parties. There are similar copyright laws in place all across the world, including the USA, although the nuances do vary from jurisdiction to jurisdiction.
A photograph would be classified as an artistic work. The first owner of a copyright work is usually the author of the work e.g. the person taking the photograph, unless there is some kind of contractual agreement in place determining otherwise e.g. an employment contract or a freelance contract between a photographer and Xclusive-Lee where copyright is assigned.
Whilst on a practical level it may seem odd that Hadid cannot simply post a photo of herself without fear of legal action, the legal reasoning is that the person who has taken the photo – the author – has put in the skill and effort in taking the photograph and accordingly should be entitled to benefit from it.
This raises the topic of a wider discussion about whether a celebrity should have a right to control how third parties can use and profit from their image, likeness and name. For celebrities such as the Kardashians, Hadids, Rihanna and the Beckhams, whose brand and image are a key way in which they earn money; it is an extremely important topic. The law differs in the USA where there is a right to publicity, usually referred to as “personality rights” and the UK, where celebrities are forced to rely on a patchwork of other legal rights such as passing off, false endorsement and right to privacy as we have no legally enshrined “image rights”.
However, even in the USA there is a caveat that consent is not required from the subject/individual concerned when the “use of a name, voice, signature, photograph or likeness [is used] in connection with any news, public affairs, or sports broadcast or account, or any political campaign”.
We will wait to see the outcome of this case but the key takeaway point is if you are thinking of using creative content that you have not created (even if you personally (such as Gigi) or your brand are featured) that you should think carefully about the ramifications of doing so and seek expert legal advice. Conversely, if you are a creative you should seek legal advice about what you can do to try and protect your valuable intellectual property rights from abuse by third parties.
Briffa is a boutique intellectual property law firm based in the Business Design Centre in Islington. We specialist in all aspects of contentious and non-contentious intellectual property law and practice, and we help our clients by helping them to identify, protect, commercialise and enforce their valuable intellectual property assets. Feel free to drop us an email on firstname.lastname@example.org or give us a call on 020 7096 2779 of you would like to book a free 30 minute consultation.
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