from the copyright-is-so-weird dept
One of the things about copyright that copyright supporters really hate to discuss is just how problematic the whole idea of getting copyrights on photographs can be. They basically have to twist themselves into all sorts of logical knots just to justify it in the first place. You can’t get a copyright on factual information and — some might argue — what is a photograph but a capturing of factual information. That photograph is a factual representation of what the lens captured. To date, the way that courts have dealt with this fundamental problem is either (a) to ignore it, or (b) to construct flimsy logical houses of cards arguing that the copyright actually applies to things like the “framing” and (in some cases) lighting choices or decisions positioning of the objects in a photograph of the photographer (if those things were, indeed, done by the photographer). And you can kind of understand the thinking on that when the photographer really does “design” whatever is being photographed. But it gets more questionable when you’re talking about “nature” photographs or just general snapshots walking around.
Some of this oddity is coming out in a somewhat weird, somewhat amusing case that the Fashion Law Blog has been following over the last few months. Reading through the filings in the case (some of which are embedded below) leads to a bunch of fairly absurd arguments (on both sides), many of which come out of the fundamental troubles with allowing copyright on snapshot photos in the first place. This case involves model Gigi Hadid, who is frequently photographed by the paparazzi. One day last fall, she was approached by a photographer and played along, “posing” for the photographer. The next day she found the photo online, cropped about 50% of the photo (so it was even more focused on her) and posted it to her Instagram feed. In January, an organization called Xclusive-Lee sued her for infringement.
There have been all sorts of procedural problems with the lawsuit, and I am expecting it to be tossed on those alone, without touching on most of the other issues that are popping up in the case, so let’s start there. First off, as we discussed back in March, the Supreme Court has said that you can’t sue until you have a copyright registration (and not just a mere application for that registration). In this case, the copyright in question has only been applied for, not issued. Xclusive-Lee’s lawyers insist that because they filed the case before the Supreme Court ruled on that issue it’s all fine and dandy, but that’s not how the law works. Separately, the complaint doesn’t establish that Xclusive-Lee actually holds the copyright on the image (it’s not even clear who Xclusive-Lee is). Hadid’s filings note that “Xclusive-Lee” did not take the photograph, and that’s not even the name on the copyright registration form. And Xclusive-Lee has not provided any proof (such as a copyright assignment) to show that it holds the actual copyright here. That seems kind of like a big deal. Xclusive-Lee’s lawyers insist that they don’t need to show such evidence up front and can do it later, which seems like a weird response. Why not just show the copyright assignment upfront?
Separately, the judge has repeatedly had to scold the lawyers for Xclusive-Lee for not following the rules, which can’t bode well:
I may not be a lawyer, but I would expect that judges don’t very much like it when lawyers repeatedly fail to follow basic instructions.
For what it’s worth, one of the lawyers for Xclusive-Lee is David Deal who has also been associated with Pixsy in the past. Pixsy is one of those scrape the internet and threaten to sue trolling operations out there.
So given all the procedural shenanigans described above, it would not surprise me at all if the case just gets tossed on those grounds. It seems like that would be the easiest (and most likely correct) way the court would go in this situation.
However, in Hadid’s motion to dismiss, Hadid’s lawyers also raise a fair use argument that is, shall we say, a little “out there.” To be clear, I do think that there are credible fair use arguments for Hadid’s usage here, but I’m not sure that Hadid’s lawyers make that credible case. Instead, they suggest a bunch of things that if the court ever gets to a fair use analysis, could raise a lot of issues.
However, in dealing with the second fair use factor (the nature of the work), Hadid’s lawyers strip away decades of everyone pretending that photographs deserve copyright and point out that it’s simply capturing facts.
The published photograph here depicts Ms. Hadid smiling while standing in front of a non-descript building. See Compl., Ex. 1. It is not a studio composition but rather a quick ?shot in a public setting,? and there is no allegation that the photographer ?attempted to convey ideas, emotions, or in any way influence [the subject?s] pose, expression, or clothing.? Katz v. Google Inc., 802 F.3d 1178, 1183 (11th Cir. 2015). In such circumstances, the photograph is considered a factual work, not a creative one, thus favoring a determination of fair use. See id.; Otto v. Hearst Commc?ns, Inc., 345 F. Supp. 3d 412, 430 (S.D.N.Y. 2018) (second factor favored fair use where photograph at wedding was ?spontaneously taken to document its subjects, as they were in the moment,? and where photographer ?did not direct or pose the subjects of the photo, nor control the lighting or the background?).
To bolster that point, they argue that because Hadid “posed” for the photograph, she’s actually partially responsible for some of the copyright-covered elements of the photograph (remember, earlier cases have held copyright on photographs can apply to the arrangement in the photograph, if done by the photographer). But what if that “arrangement” is done by the subject of the photograph? Uh, that would shake up copyright, and reminds me of the crazy Garcia v. Google case where the 9th Circuit (briefly, before fixing its bad ruling) decided that an actress in a film could hold a copyright in her own performance. Here, Hadid’s lawyers argue that there’s a stronger fair use argument because of Hadid’s own contributions to the photograph and even hint that maybe she should be declared a “joint author.” That, alone, would shake up the copyright world.
In fact, the second factor strongly favors Ms. Hadid here because Ms. Hadid posed for the camera and thus herself contributed many of the elements that the copyright law seeks to protect. See Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) (elements of originality in photograph include ?posing [of] the subjects?); see also Gillespie v. AST Sportswear, Inc., No. 97 Civ. 1911, 2001 WL 180147, at *5 (S.D.N.Y. Feb. 22, 2001) (jury could find defendant was joint author of photographs where defendant contributed to ?clothing? and ?poses? of models). Where creative features come not from the photographer but rather from the subject, holding the subject liable for infringement does not nothing to ?foster? what the Copyright Act values….
Xclusive-Lee’s lawyers hit back on that point arguing that this would more or less destroy copyright in lots of photographs:
Photograph in this case is undoubtedly a highly creative and expressive, not factual, work. It is
not just a mere snapshot of an individual on a street corner taken on a cellphone; the Photograph
in this case is a highly creative work, involving a number of creative choices including timing,
lighting, angle, composition, and others. Taken to its logical conclusion, the Hadid?s position
would deem any photograph of a real-world location or individual to be a factual, thinly protected
Well, yeah. As noted up top, this is the whole myth about copyrights in photographs that lawyers and courts have sought to avoid discussing for years, so it’s actually kinda cool that the issue is being raised here — though I doubt the court will end up dealing with it.
Xclusive-Lee also hits back hard on the mere suggestions that Hadid might be a joint author:
Concerning Hadid?s assertion that she somehow maintains joint copyright in the
Photograph because she noticed the photographer and smiled at the moment the photographer
chose to snap the shutter is preposterous. Ms. Hadid is as much a joint copyright holder in the
Photograph as the subject of a biography is joint copyright holder to the words used by the
author to describe her life.
Hadid?s assertion tests the limits of cynicism because Hadid has gone out of her way to
criticize photographers like the author of the Photograph as a necessary evil of the publicity she
receives. . Also, it is well worth pointing out Hadid makes a point of regularly copying these
same street photographs (to be fair, Hadid regularly copies and posts runway images of her
without license or permission of the copyright holders) of herself to her Instagram page .,
which contribute to her online presence, popularity, and most importantly her marketability. If
Hadid were genuinely interested in accomplishing the same thing but without being a serial
copyright infringer, she could properly license the images or hire someone to take similar
photographs of her liking. Instead, Hadid wants to have it both ways. She derides the individuals
who capture photographs of her, then turns around and appropriates their work.
As if both sides of this equation aren’t exploiting each other?
The other element of Hadid’s fair use argument that is interesting, but seems highly unlikely to persuade the judge in the case, is to argue that posting to social media is, by itself, transformative:
According to the Complaint, Ms. Hadid merely reposted the photograph to her Instagram page and made no effort to commercially exploit it. Compl. ?? 9-11. Her reposting thus reflected a personal purpose different than the photographer?s purpose in taking the photograph, which was to commercially exploit Ms. Hadid?s popularity.
That’s certainly an interesting argument, but I’d be shocked if judges ruled that reposting images to social media for “personal purpose” is transformative from the photographer’s interest in commercially exploiting the photograph. I’m usually first in line to defend a variety of things as transformative, but this argument seems unpersuasive. Of course, Xclusive-Lee’s response to this point also misrepresents the current state of things with regards to transformativeness as well:
The purported purpose of Hadid in using the Photograph here is not even close to being
transformative. Accordingly, under the language of Campbell itself, the second work must
actually either make some critical use of, or change to, the original work to qualify as
transformative. Hadid?s use of the Photograph here does nothing of the sort. The Photograph is a
well-executed, candid, street photograph of Ms. Hadid. Hadid posted it in its original, barely cropped
form for the purpose of depicting exactly that. Hadid has not claimed she copied and
posted the Photograph for any of the established albeit narrowly defined statutory allowances,
including commentary, criticism, reporting, or research.
This is blatantly misrepresenting fair use. Fair use is not in any way limited to “narrowly defined statutory allowances.” Indeed, Section 107 clearly uses “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” (note: a longer list than Xclusive suggests) as representative examples. It explicitly says “for purposes such as” highlighting that those are examples, not an exclusive list. This is not “fair dealing” — which has narrowly defined statutory allowances. It’s fair use, which has long been applied by looking at the whole of the situation, rather than through any “narrowly defined statutory allowances.”
Even so, I’m not convinced that the re-posting is “transformative” under fair use — though I would argue that there are other reasons why it should be declared fair use. I just don’t think Hadid’s motion lays those out very well.
Still, this is an interesting case, even just to see the slightly nutty arguments on both sides. I fully expect the judge to go the easiest and most direct route of tossing it out for the failure to get the registered copyright (let alone failing to show that Xclusive-Lee holds the copyright) and not for any element in the fair use argument. However, if the case does move forward, it certainly could shake up copyright law if the court starts to dig in on some of those fair use arguments…
Filed Under: copyright, copyright registration, fair use, framing, gigi hadid, joint authorship, photographs, transformative
Companies: david deal, xclusive-lee