From the United States arrives a curious phenomenon that links fashion and law in recent years; a constant stream of lawsuits filed by paparazzi against celebrities and/or brands for unauthorized use of images taken by them on their official Instagram accounts.
One of the latest lawsuits of this kind to have a court order siding mainly with the photographer involves model Bella Hadid: in the case Jawad Elatab v. Hesperios, Inc., 1:19-cv-9678 (SDNY) the dispute began with a photo of the model taking a taxi on the streets of New York city. In the image, taken by photographer Jawad Elatab in 2019, Hadid was dressed head-to-toe in the New York-based brand Hesperios, which is why the brand posted it on its Instagram stories along with a description of the look and information about the availability of the clothes. Unfortunately, they didn’t think of asking for Elatab’s permission or buy him the rights to the image before doing so, and that was their mistake. Sad irony, they must be thinking at Hesperios, from where the clothes had probably been sent to the model as a gift in the hope that she would be photographed wearing them. After getting it done, they find that the paparazzo is suing them for copyright infringement. As the saying goes, be careful with what you wish for because you might get it.
Indeed, under both common and civil law, photographs are considered woks of the mind and therefore belong to their authors, who can forbid their use by third parties. While it is true that there are a number of cases in which this use cannot be prevented (the common law fair use examples: non-commercial or study purposes, criticism or commentary, teaching, etc.), here the competent judge understood that Hesperios “published the image on its Instagram account as marketing to promote its brand”.
To us, the rise of this lawsuits is just a new symptom of a problem that has always existed on the Internet: the impunity with which the vast majority of users take other people’s images. The “harmless” act of downloading an image, copying it or taking a screenshot of it to use it as we please has now been transferred to social media. The problem is, when you are a brand or a celebrity and, precisely, you are trying to get as much visibility as possible, the faux-pas can be costly. Other examples of paparazzi “revenge” include Xposure Photo Agency Inc. v. Isabella Khiar Hadid p/k/a Bella Hadid 2:19-cv-10587 (C.D.Cal), in which the Xposure agency accused Bella Hadid of uploading photos of herself to her Instagram account that did not belong to her, thereby engaging in the “systemic piracy” that “harms the present and future market of original photographs”; or Splash News and Picture Agency, LLC v. Lopez 2:19-cv-08598 (C.D. Cal.), involving a photo of Jennifer Lopez and ex-boyfriend Alex Rodriguez strolling down New York City, taken by a Splash News photographer and used by Lopez without permission on her Instagram account.
In all these lawsuits, which usually end in out-of-court settlements, plaintiffs point out that, given the high number of followers and the income they generate for the defendants, any content uploaded to this accounts should be considered of commercial and promotional nature, therefore ruling-out any possible fair use claims. Us children-of-the-90s who grew up with the background noise of the celebrities gossip shows on the TV, don’t miss the irony in the fact that now the paparazzi are the ones suing the celebrities for “snatching” the photos they take of them.
Note that the point here is not whether or not it is lawful to take photos of the subjects, which it is. In all cases we are talking about images taken in public or in a context related to the professional activities of people who enjoy notoriety, so there would be no violation of their fundamental rights.
However, this is an issue in which the scarcity of court decisions allows for alternative positions. For example, the Odell Beckham Jr v. Splash News and Picture Agency, LLC and Miles Diggs, 2:18-cv-01001 (E.D. La.) lawsuit. Although not belonging to the fashion industry, this lawsuit approached the same problem in a very different way. According to The Fashion Law, in a role reversal, Cleveland Browns football player Odell Beckham Jr. sued photographer Miles Diggs and Los Angeles-based Splash News & Picture Agency for an alleged attempt to extort $40,000 from him after he posted a photo of himself to his Instagram account. “The audacity of Splash News to demand payment from Beckham – the very person who gives value to the photos – is shocking, reeks of bad faith and highlights Diggs and Splash’s trollish behaviour,” the lawsuit stated. “The only reason the photos have value is because they show Beckham” (…) “and yet he has received no compensation”, added, thus proposing a line of attack that goes beyond the realm of intellectual property.
Predictably, the dispute was settled out of court, but the questions it raised remain: who brings value to whom, the celebrity to the photographer or the photographer to the celebrity? Which came first, the chicken or the egg – or should we rather say, the celebrity or the papparazo?
Image: La Dolce Vita, Federico Fellini (1960)