- Share this article on Facebook
- Share this article on Twitter
- Share this article on Email
- Show additional share options
- Share this article on Print
- Share this article on Comment
- Share this article on Whatsapp
- Share this article on Linkedin
- Share this article on Reddit
- Share this article on Pinit
- Share this article on Tumblr
A few years ago, photographers suing stars for posting paparazzi photos of themselves on social media was all the rage. Many of the fights settled fairly quickly, but actress Emily Ratajkowski fought back and on Tuesday a New York federal judge found her Instagram Story could be a fair use of the image at issue and the matter should go to a jury.
In October 2019, Robert O’Neil sued Ratajkowski and her Emrata Holdings because she shared a photo he took outside a Manhattan flower shop in an Instagram Story, a feature that automatically deletes posts after 24-hours.
Ratajkowski moved for summary judgment, arguing there isn’t a valid copyright in the photo, her post was a fair use, and O’Neil hasn’t suffered any damages. She also sought sanctions and an award of attorney’s fees. O’Neil filed a cross-motion for summary judgment.
U.S. District Judge Analisa Torres on Tuesday issued a split opinion.
Torres found the photo meets the “extremely low” standard for originality that’s required for copyright protection, and that O’Neil may seek statutory damages despite suffering minimal actual damages.
But, that doesn’t necessarily mean his suit will be successful. Torres also found it’s premature to determine whether Ratajkowski’s post was a fair use and denied both motions for summary judgment as to that issue.
Ratajkowski had argued, among other things, that “by placing the words ‘mood forever’ on the Photograph to post it to her Instagram Stories, the Instagram Photograph ‘ma[de] commentary and criticism of [Ratajkowski’s] perspective of abusive, aggressive, and harassing practice of paparazzi constantly following her, even when buying flowers for a friend.”
“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,” writes Torres in the order, which is embedded below. “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. … And, the Court declines to opine on the newsworthiness of Ratajkowski’s battles with paparazzi compared to other events the documentation of which courts have found to be fair use.”
Torres also notes that the photo disappearing after 24 hours is a factor. “[I]t 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,” states the order. “Moreover, assuming Ratajkowski wished to critique paparazzi, she chose the comparatively insubstantial option of Instagram Stories rather than the Instagram Account main feed.”
The actress succeeded in convincing the court her company, Emrata, shouldn’t be a defendant. Torres found it’s “undisputed that Ratajkowski posts on the Instagram Account in her personal capacity” and O’Neil didn’t otherwise link the alleged infringement to the company. The claims against Emrata are dismissed and the court found the company should be awarded its attorney’s fees and costs.
The photographer, represented by notorious plaintiffs’ attorney Richard Liebowitz, in recent years has also sued Gigi Hadid over a photo of herself; a company called Ali G. (unrelated to the Sacha Baron Cohen character) over a photo of Nick Jonas and Priyanka Chopra Jonas; and Hollywoodlife.com over a photo of Zayn Malik. Those three matters all appear to have settled. In 2021, with a different attorney, O’Neil sued IMDb over a photo of Liam Hemsworth.
In November 2020, Liebowitz was suspended by the Manhattan federal courts after “19 formal sanctions and scores of other admonishments and warnings from judges across the country.” In June, the 2nd U.S. Circuit Court of Appeals affirmed nationwide sanctions issued by the district court. Torres declined to issue sanctions in this matter because there’s no evidence any misrepresentations have been made or that the suit is “unduly vexatious.”
Sign up for THR news straight to your inbox every day