Gigi Hadid, Heroine of the Copyright Revolution? (Guest Column)

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It seemed like just another paparazzi ambush. Supermodel Gigi Hadid emerged from a building and encountered photographers on a stakeout. Should she turn around and run back inside? Duck and dash to her curbside ride? Instead, she did what supermodels do: She tacked to the right, raised a stiletto, vogued her chin and smiled her smile of fame and fortune. 

The camera clicked. The image sold. Hadid saw it, liked it, cropped it and posted it to her then 43.7 million Instagram followers. Then she got sued by XClusive-Lee, a paparazzi agency, who claimed to be the photograph’s copyright owner.

This high-profile clash is hardly isolated. The social media generation has been notoriously casual about photographic rights. Along with legions of non-celebrities, luminaries like Ariana Grande, Khloe Kardashian, Jennifer Lopez, Odell Beckham and (just recently) Nicki Minaj have been sued for posting images of themselves online. The already unstable celebrity-paparazzi symbiosis convulses with each new lawsuit — and Kim Kardashian now employs her own photographers to insure that her fans may copy and share her images without fear of litigation.

Hadid knocked the lawsuit out cold because of XClusive’s glaringly defective paperwork. (Oh, sloppy paparazzi: You’ve got to get the U.S. Copyright Office to issue a registration for the photo before you file a lawsuit alleging infringement!) That case is now history, but the unprecedented issues left unresolved will inevitably be adjudicated in the near future.

Hadid wanted the right to not be sued for using a photograph of herself, exploring the legal intersection of a celeb’s right of publicity and a photog’s copyright. A substantive decision would have clarified a star’s right to control how others profit from her likeness. The battle involves a copyright law written before the dawn of the internet, before legislators could imagine social phenomena like Instagram’s billion users and hundreds of millions of daily photo uploads. It's an imminent fight that could spark the type of legal rethinking needed when the old rules fail to accommodate new realities.

Hadid’s Fair Use Argument. Fair use is the most potent of copyright infringement defenses. It's an “equitable rule of reason” designed to avoid the unreasoned application of copyright law. The ultimate inquiry is whether copyright goals are better served by permitting, rather than preventing, the challenge to a famous woman’s use of a photo of herself. At first blush, there was an intuitive fairness to Hadid’s dismissal argument: “It is one thing for paparazzi to take advantage of Ms. Hadid by surveilling her, taking photographs of her every public movement, and selling them for profit. It is quite another to demand damages based on an Instagram post by the very person whose image the photograph sought to exploit in the first place.” Hadid, like all celebrities, has a recognized right of publicity to use her likeness for profit, but is there a related right to not be sued for posting her likeness photographed by another? How can the law allow her to be sued for using an image of herself when she was necessary for endowing the image with its essential value? 

The enumerated fair use factors largely weigh against Hadid. The supermodel's social media accounts are arguably a commercial venture even if a particular post isn't sponsored, the posting of the photo to her Instagram account arguably undermines the value of the photo, her cropping of the image likely isn't enough to be considered transformative and while she only used about half of the photo it was 100 percent of the important part: her image. (See the full photo, below.)

It's a grim prospect for any future celebs who find themselves in a similar fight — but fair use is not limited solely to the four enumerated factors. Congress specifically allows for “open-ended and context sensitive” inquiries. Legislators accepted and codified sufficient wiggle room for considerations of equity and reason. So, the overarching question remains unchanged: Are copyright law’s goals better served by permitting, rather than preventing, a celebrity’s Instagram use of an image of herself that she helped create? Can a court surgically carve out a fair use exception for her while still protecting the copyright and livelihood of the photographer? 

Hadid’s Implied License Argument. Hadid claimed that when she voluntarily stopped and posed she enhanced the value of the photo in exchange for permission to use the image in a manner that does not interfere with the photographer’s ability to profit from it. It’s a novel theory that overlaps with the second fair use factor. Legally, Hadid was alleging an “implied license,” or an unwritten contract based on objective conduct, an agreement that would permit a reasonable person to conclude that a deal had been struck between her and the photographer.

Before its case got punted on technical grounds, XClusive mocked Hadid’s “imaginary world of make-believe contracts,” sneered that the argument tests “the limits of cynicism” and dismissed her argument by asserting that she is as much a joint copyright holder of the photo “as the subject of a biography is joint copyright holder to the words used by the author to describe her life.” These spirited jabs missed their mark.

XClusive’s analogy was ill-fitting. A biographer creates original expression about what a celebrity has done, whereas a photographer creates original expression about what a celebrity is doing. In this instance, Hadid was posing (creating an original expression in the modeling art that is her business) as the photographer was snapping (creating an original expression in the visual art that is her business). Thus, the photograph at issue embodies simultaneously created original expressions by both participants. Such simultaneity does not exist in the biography business. And the agency's bravado was overwrought. Hadid argued for a reasoned extension of existing law. In the celebrity-paparazzi universe, there’s a genuine difference between a surveillance photo (taken when a celebrity neither notices nor mugs for the photographer) and a collaborative photo (taken when a celebrity consciously presents for the photographer). In the latter, the resulting photo captures a joint creation of, in this instance, Hadid stopping outside to sparkle intentionally for the photographer’s lens. 

Though neither the legislature nor the judiciary has addressed this distinction yet, the time to do so has arrived. The ubiquity of digital images has forced tectonic shifts in society. History shows that the law evolves precisely where previously overlooked nuances are revealed by societal upheaval.

Another Possible Argument That Hadid Did Not Make: Co-Authorship. The supermodel could have made an even bolder argument that she is one of the authors of the work. The majority of courts have held that authorship requires more than creative contribution, regardless of how valuable that contribution is. The author must have “superintended the whole work,” served as the inventive mastermind and created the work by translating the idea into a fixed, tangible medium of expression. Control is often the most important factor. The rule favors photographers and may have killed the claim, but courts have held “a person need not hold the camera or push a button to be considered the author of a visual work, since one can exercise control over the content of a work without holding the camera.”

The cases considered to date have only addressed who owns photographs from a fashion shoot when a designer engages a photographer and controls the setting. No cases have yet to analyze co-authorship where paparazzi took a photo of a collaborating model in a public setting.

The Copyright Act explicitly defines a joint work as a “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary work.” The best manifestation of a shared intent is, of course, a contract. In the absence of a written agreement, the inquiry turns on a number of factual possibilities without rigid formula. The parties must entertain “the concept of joint authorship.” Arguably, this could exist when a star provides an advance tip to TMZ and stages the photo-op, or stops on the red carpet with a curated wardrobe and practiced posture. Paparazzi photographers would undoubtedly argue he/she harbors no such intent when they click the camera, but the parties’ conduct does point to some degree of mutual understanding between the photographer and the subject of the photo.

Although the statute does not demand it, most courts require that the contribution of each joint author must be “independently copyrightable,” or that each author made a contribution demonstrating “some minimal degree of creativity.” Hadid satisfied this low showing because she provided the wardrobe, pose and facial expression. This factor may be decided on the aforementioned control issue. Certainly, Hadid did not possess the authority to accept or reject the images. Yet, she was not without control in the broader sense. She could have hurriedly buried her head, for example, thus controlling whether the photographer had any opportunity to snap a valuable photo in the first place. Under California (but not New York) law, the court also considers audience appeal in determining joint authorship analysis. This prong was easily satisfied by Hadid who, through Instagram alone, garners 44 million pairs of eyeballs and makes the photograph worth looking at it.

The Crystal Ball Is Not So Clear. Hadid’s arguments for fair use or an implied license will certainly be echoed by another celebrity in some imminent litigation. The stakes are monumental. Will celebrities win the right to post images of themselves for free? Will stars who pose for the paparazzi be deemed co-authors who may use or license images of themselves as they wish, so long as they split the proceeds with the photographer? A finding of co-authorship is a potential win-win because celebrities have the fame, contacts and leverage to exploit photos in commercial streams that photographers cannot reach by themselves. Paparazzi — who normally receive a one-time flat fee as compensation — would be in the position to diversify their sources of income and receive the kind of royalty checks that stream to other creators in the entertainment industry. It would also revolutionize the legal landscape upon which photographs can be posted on Instagram, wipe out a battalion of copyright trolls and unburden the vastly expanding marketplace of ideas expressed through imagery.

James Sammataro is a Miami-based litigator and co-chair of Pryor Cashman's media and entertainment group. Intellectual property attorney John Marcoux contributed to this column.