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A copyright case between Emily Ratajkowski and a photographer, whose photo the actress used for an Instagram Story that could’ve had far-reaching implications on fair use of images, has settled.
U.S. District Judge Analisa Torres closed the case Wednesday after being informed that both sides “reached a settlement in principle,” according to court filings. Terms of the deal weren’t disclosed.
A few years ago, paparazzi started to sue celebrities for posting their pictures on social media without permission. The stars, including Khloe Kardashian, Liam Hemsworth and Gigi Hadid, typically settled the cases for unknown amounts.
Ratajkowski instead chose to fight a lawsuit brought by Robert O’Neil in 2019 after she shared a photo he took of her outside a Manhattan flower shop in an Instagram Story, which automatically deletes posts after 24 hours. She claimed that O’Neil lacks a valid copyright and that her use of the photo constituted fair use of the image.
“The protections afforded by the Copyright Act are only available to a party ‘who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be,'” she wrote in a motion for summary judgment. “This is true even if the plaintiff holds a registered copyright.”
Under copyright law, photos don’t qualify for protection if they lack “artistic merit” and the content of the images don’t “give the court any reason to believe that any ‘creative spark’ was required to produce it.” Photos that are purely descriptive, defined as merely capturing things “as they are,” are similarly not afforded copyright protection.
Ratajkowski argued that O’Neil simply took a photo as she appeared on the street.
Although Torres found that the image meets the “extremely low” standard for originality, she held off on ruling whether Ratajkowski’s use of the photo on her Instagram Story constituted fair use.
The judge said that the actresses’ alteration of the photo by placing the words “mood forever” on the image may have amounted to transformative use that protects her from a copyright claim.
“A reasonable observer could conclude the Instagram Photograph merely showcases Ratajkowski’s clothes, location, and pose at that time — the same purpose, effectively, as the Photograph,” Torres wrote. “On the other hand, it is possible a reasonable observer could also conclude that, given the flowers covering Ratajkowski’s face and body and the text ‘mood forever,’ the Instagram Photograph instead conveyed that Ratajkowski’s ‘mood forever’ was her attempt to hide from the encroaching eyes of the paparazzi — a commentary on the Photograph.”
In what was the first ruling considering the impact of an Instagram Story post compared to one on the main feed, Torres also found that the length of availability of the infringing image mattered. “If the Instagram Photograph only appeared for twenty-four hours, it is much less likely that someone might take the Photograph from the Instagram Account rather than licensing it from Plaintiff, compared to that same risk if the Instagram Photograph was permanently on the Instagram Account,” read the order.
Attorneys representing O’Neil and Ratajkowski didn’t respond to requests for comment.
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