Take it From Gigi: Being in a Pic Doesn’t Mean You Can Use It

NEW YORK – For some, I’m sure the initial reaction to the news of a company which owns the copyright to a photo of model Gigi Hadid suing her over posting the image on Instagram is one of disbelief – particularly when they hear the company is demanding the maximum statutory damages for each alleged violation of its rights.

There are several things to keep in mind as you consider Xclusive-Lee Inc’s complaint against Hadad, however, some of which may make you feel less sympathy for Hadad as a defendant.

First, when filing a copyright lawsuit, the plaintiff will just about always request the maximum statutory damages of $150,000 per violation; whether they receive that much relief when the final damages are determined is another matter altogether.

Second, while it might make some intuitive sense to believe that individuals depicted in photographs like the one Hadid posted are granted some manner of automatic usage-rights to the image simply because they’re in the photo, that’s generally not how copyright works. (The rights granted to the rightsholder are called “exclusive” rights for a reason.)

Finally, it’s also worth noting this isn’t Hadid’s first go-round with getting sued over images she posts to Instagram. Hadid was sued about a year and a half ago by a photographer named Peter Cepeda for posting an image he shot of her in July 2016.

While Cepeda’s case settled out of court (as I believe the Xclusive case is likely to do, as well), in its complaint, Xclusive relies on the Cepeda case to show that Hadid has “first-hand knowledge that copying and posting photographs, of herself or other subject matters, to her Instagram or other social media accounts that she did not properly license or otherwise receive permission from the copyright holder constituted copyright infringement.”

“Specifically, Hadid was named as a defendant and served with a copy of a complaint and summons in a suit alleging copyright infringement, Peter Cepeda v. Jelena Noura “Gigi” Hadid and IMG Worldwide, Inc.,” Xclusive noted in its complaint. “Although the case was settled prior to the discovery stage of litigation, the facts alleged in Cepeda are nearly identical to the facts alleged in the present case, including the allegation Hadid copied and posted Plaintiff Cepeda’s copyrighted photograph (of Hadid on a public street in New York City) to Hadid’s Instagram and Twitter accounts without license or permission from Cepeda.”

In its complaint, Xclusive further asserts that Hadid’s act of infringement was “willful and intentional, in disregard of and with indifference to the rights of Xclusive.”

Arguing that Hadid’s infringement was “willful and intentional” is part of establishing that Xclusive is entitled to substantial statutory damages in the case – which is where the $150,000 figure comes into things, as that is the maximum amount the court can award for statutory damages under U.S. copyright law. If a plaintiff cannot show that the alleged infringement is “willful,” the statutory damages available to the plaintiff fall to the range of $750 to $30,000, based on what the court believes to be fair and reasonable under the circumstances of the infringement.

Xclusive is not just seeking statutory damages in connection with the single claim of copyright infringement. The company has also alleged contributory copyright infringement, arguing that Hadid “knowingly made available Copyrighted Photograph to innumerable individuals and media outlets by posting” it.

Xclusive is also asking the court for declaratory relief stating that “Hadid’s unauthorized conduct violates Xclusive’s rights under the Federal Copyright Act;” an injunction prohibiting Hadid (and anyone associated with her) from copying and republishing without consent of Xclusive or “otherwise infringing Xclusive’s copyright or other rights in any manner;” an order requiring Hadid to “account to Xclusive for all gains, profits, and advantages derived by Hadid by their infringement of Xclusive’s copyright;” attorney’s fees and the usual civil litigation catchall “other and further relief as is just and proper.”

It remains to be seen how Hadid will respond to the complaint, so it’s hard to say at this point whether she has any valid counterargument to offer. Either way, my strong hunch is that Xclusive’s complaint will settle out of court, just as Cepeda’s did.

Gigi Hadid image via Creative Commons ShareAlike license