Judge Tosses Crazy Copyright Lawsuit Over Gigi Hadid Photo

from the as-expected dept

Last month, we wrote a fairly long post about some interesting elements (demonstrating the flimsiness of "copyright" existing for many photographs) in a copyright lawsuit filed against model Gigi Hadid for reposting a cropped paparazzi photo on her Instagram. As we noted in that post, despite all of the interesting arguments made regarding copyright and photos, it seemed clear that this case was going to get tossed on purely procedural grounds -- namely that the lawsuit, filed by a photo agency called Xclusive-Lee (who may or may not even hold the rights to the photo), was filed prior to the photo receiving a registration from the Copyright Office. Back in March, the Supreme Court said that copyright law is quite clear that you need to wait until the registration is obtained.

Here, that was not the case. It was filed before the registration was granted, and thus it's no surprise that (as first pointed out by the Hollywood Reporter) that this case was thrown out for that reason alone.

Assuming, without deciding, that Plaintiff has sufficiently pled that it owns a valid copyright in the Photograph, the Court concludes that Plaintiff’s copyright infringement claim should nevertheless be dismissed due to Plaintiff’s failure to comply with the registration requirement. As the Supreme Court has held, the registration requirement is “[a] statutory condition” under which a plaintiff must obtain registration of a copyright in a work “before filing a lawsuit” based on infringement of that work.

The judge mocks the weak attempt by Xclusive-Lee's lawyers to argue that because this lawsuit was filed before the Supreme Court made it's ruling, that the court can magically ignore the Supreme Court. Not how it works.

Acknowledging the holding in Fourth Estate, Plaintiff argues, in effect, that because it filed the complaint in this matter before the Supreme Court’s decision in Fourth Estate, and because prior to Fourth Estate, the Second Circuit had left “the application/registration rule . . . issue to the discretion of individual District Court judges”.... Fourth Estate should not preclude Plaintiff’s infringement claim in this case. The Court disagrees. There is no doctrinal basis on which this Court can decline to apply a Supreme Court decision that would otherwise apply merely because that Supreme Court decision was issued after the filing of the complaint at issue in this case. Indeed, Plaintiff cites no case law supporting its position. In Fourth Estate, the Supreme Court decisively held that § 411(a) requires a plaintiff to have already been granted registration from the Copyright Office prior to commencing an action for copyright infringement. See Fourth Estate, 139 S. Ct. at 888. Although Fourth Estate postdated Plaintiff’s filing of its complaint, it is nevertheless binding on all lower federal courts unless and until the Supreme Court decides to revisit it.... For this reason, Plaintiff’s observation that the Second Circuit may have provided for a different result prior to Fourth Estate is of no moment.

Ah well. Exactly as expected. Still, it will be interesting to see if the issues raised earlier do start to show up in future cases.

Filed Under: copyright, gigi hadid, photographs, registration
Companies: xclusive-lee


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  • icon
    Gary (profile), 22 Jul 2019 @ 4:11pm

    Negativity

    When photographers had plates and negatives, who ever held the neg held the rights. Now IP over reach has gone insane and you can get a copyright claim filed against a picture you took.
    But hey - we need more copyright protections, not less. Because being creative means paying a lawyer to "Clear" your works to make sure no one else did something similar first:

    https://www.thewrap.com/marvel-wins-copyright-infringement-lawsuit-over-iron-man-3-movie-post er/

    Should copyright extend to a pose? Maximalists say Yes. The framers said copyright was limited to full books, printed and registered.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jul 2019 @ 4:42pm

    Posers are going to get copyright protection?
    LOL, this is getting quite silly.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 22 Jul 2019 @ 7:34pm

      Re:

      I think this case nicely highlights the fallacy of copyrights conferring absolute ownership.

      Does the model have ownership of her image?
      Clearly a photographer has ownership of their pictures.
      What happens when those interests intersect?

      Imaginary Property - no one can really own it, and you can't control IP without the government stepping in and sorting it out.

      reply to this | link to this | view in chronology ]

      • identicon
        David, 23 Jul 2019 @ 12:30am

        Re: Re:

        The model does not have "ownership of her images". Good grief. She has privacy interests requiring her assent before publishing her likeness. It's not like this is uncovered legal ground: industries are built upon and rely on the respective laws and interests.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Jul 2019 @ 6:34am

          Re: Re: Re:

          "She has privacy interests requiring her assent before publishing her likeness."

          How so?

          reply to this | link to this | view in chronology ]

        • icon
          Mason Wheeler (profile), 23 Jul 2019 @ 7:27am

          Re: Re: Re:

          What "privacy right" can possibly exist relating to acts performed in public? That's literally the opposite of an expectation of privacy.

          reply to this | link to this | view in chronology ]

        • icon
          Gary (profile), 23 Jul 2019 @ 8:57am

          Re: Re: Re:

          She has privacy interests requiring her assent before publishing her likeness.

          You literally just made this up, right? You just put all paparazzi and news photographers out of business.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Jul 2019 @ 12:46pm

          Re: Charlie Brown you blockhead

          You do realise that photo was taken in a public place and she is the one accused of “publishing” the photo, right?
          I mean it’s not like you’d just say some monumentally stupid ass shit without having a bitchin’ citation in your pocket just rarin’ to go.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Jul 2019 @ 5:45pm

    A copyright case getting tossed? Damn, blue's not going to like this.

    reply to this | link to this | view in chronology ]

  • identicon
    kog999, 23 Jul 2019 @ 12:14pm

    just wait and try again

    why couldn't they just wait until the registration goes though and then try again?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jul 2019 @ 10:10pm

      Re: just wait and try again

      No reason. Which is odd that they jumped the gun by filing that shambles of a suit. Unless they were looking to pressure the model into a settlement.

      reply to this | link to this | view in chronology ]


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