#StrikeAPose #CopyrightInfringement

By Meaghan Kent, Katherine Dearing, and Danae Tinelli

Supermodel Jelena Noura “Gigi” Hadid was not the first celebrity to be photographed by paparazzi and then to post the resulting photo to social media, nor was she the first to be subsequently sued for copyright infringement for doing so. Other celebrities, including Jennifer Lopez and, most recently, Victoria Beckham, have made news for the same situation.

This trend falls into an interesting intersection of two significant tenets of law: a celebrity’s right of publicity in their own image and a photographer’s right to copyright their artistic work. The district court dismissed the case due to a lack of a copyright registration. In addition to that defense, though, her attorneys also raised the defenses of fair use and implied license. The second may have begun paving the way for future legal challenges to clarify these issues by raising a novel argument—implied license—alongside the more typical defense of fair use.

While an exclusive license must be in writing, a non-exclusive license can be verbal and an implied license may be “implied from conduct.” Graham v. James, 144 F.3d 229, 235 (2d Cir. 1998); see also 17 U.S.C. § 101. An implied license defense thus requires that an alleged infringer demonstrate that even without an express verbal or written agreement, the parties’ conduct indicates an intent to grant a license. Federal courts differ as to the precise requirements for an implied license and the cases typically are fact specific. Compare Meisner Brem Corp. v. Mitchell, 313 F. Supp. 2d 13, 17 (D.N.H. 2004) (finding that a nonexclusive copyright license may be implied where the licensee:  (i) requested the creation of the work; (ii) the licensor created the work and delivered it to the licensee; and (iii) the licensor intended the licensee to distribute the work) with Pavlica v. Behr, 397 F. Supp. 2d 519, 527 (S.D.N.Y. 2005) (finding a similar claim can be established by showing:  (i) the copyright holder had knowledge of the defendant’s conduct; (ii) the copyright holder’s action manifesting its consent to the defendant’s action was intended to be relied on, or the defendant had a right to believe it was so intended; (iii) the defendant was ignorant of the true state of the facts; and (iv) the defendant relied on the copyright holder’s actions to its detriment).

In the Motion to Dismiss in Hadid’s case, her attorneys argued that she “stopped to permit the photographer to take her picture and, by posing, contributed to the photograph’s protectable elements.” XClusive-Lee, Inc. v. Jelena Noura “Gigi” Hadid, No. 19 Civ. 520, ECF No. 15 (E.D.N.Y. June 5, 2019), at *13. The Hadid court did not address this argument in its decision to dismiss the case, but it nonetheless raises intriguing questions for future cases. By posing, did Gigi Hadid request the creation of the work? By taking a picture of Hadid while she posed, did the photographer manifest consent to participate in their joint artistic work? By then posting the photograph on social media, was the photographer delivering it for Hadid’s use?

Though not plead, the language of the Hadid filing seems to lay the groundwork for a potential argument of co-authorship of copyright in the photograph. That is, by posing, the subject contributed to the protectable elements and thus jointly created the work with the photographer. Indeed, the positioning of a subject of a photograph contributes to copyright ownership in a photograph. See Copyright Office Compendium §909.1 (“The creativity in a photograph may include the photographer’s artistic choices in creating the image, such as the selection of the subject matter, the lighting, any positioning of subjects, the selection of camera lens, the placement of the camera, the angle of the image, and the timing of the image.”). The question though is whether the subjects’ undirected and unique self-positioning would render the subject a co-author.

The Copyright Act defines a joint work as one “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary work.” 17 U.S.C. § 101. The typical standard for a joint work imposed by courts is fairly high, and requires, at least in the words of one court, “intellectual modification” rather than mere participation. Kyjen Co., Inc. v. Vo-Toys, Inc., 223 F.Supp.2d 1065, 1068 (C.D. Cal. 2002). The Hadid case raises interesting questions for joint authorship. For example, can the required intent of co-ownership be demonstrated by the subject striking a unique pose and the photographer capturing the pose? Is striking an undirected pose sufficient to meet the requirement of inseparability or of “intellectual modification” to create co-ownership interests?

Hadid’s case, and the rash of other similar situations, underscores that this issue is sure to arise again and eventually be litigated for a court to decide. Stay tuned, as what follows may shape the interaction between celebrity and paparazzi in the age of social media for years to come.