THE FASHION LAW
image: Gigi Hadid
Gigi Hadid has been handed a win in the lawsuit filed against her early this year for posting a photo of herself on her Instagram account. According to the complaint, which was filed in federal court in Brooklyn, New York in January, Hadid “copied and posted” to her Instagram account a photo belonging to Xclsuive-Lee, Inc. “without license or permission from Xclusive,” prompting the photo agency to file – and ultimately, lose – a copyright infringement suit.
Following a heated back-and-forth between counsel for the supermodel – who claimed that her use of the photo was not infringement but fair use (and that it was Hadid, not the photographer, that contributed the creative and copyrightable elements in the photo – and the paparazzi photo agency – which took issue with the allegedly “uncommercial” nature of Hadid’s use of the photo and the “preposterousness” of her co-authorship claim, among other things, a federal court in Brooklyn, New York handed Hadid a win on Thursday.
Citing the March 2019 decision from the Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, Judge Pamela Chen asserted that in order to make a case for copyright infringement, the plaintiff must possess a copyright registration. “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,” Judge Chen stated.
The problem for Xclusive-Lee? It “does not allege that it had been formally granted registration of a copyright in the photograph [of Hadid] from the Copyright Office at the time it filed the complaint in this case.” Judge Chen further states, “At most, the complaint alleges—and, indeed, Plaintiff appears to concede—that, at the time it commenced this action, it had only applied for a copyright in the photograph.”
Xclusive-Lee had previously argued that it should not be barred from pursuing its copyright infringement claim due to the Supreme Court’s decision in Fourth Estate – because it filed its suit against 23-year old Hadid nearly 3 months before the nation’s highest court issued its decision, “and because prior to Fourth Estate, the Second Circuit had left ‘the application/registration rule . . . issue to the discretion of individual District Court judges.” However, the court here disagreed.
“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,” Judge Chen states in her decision, and notes that Xclusive-Lee “cites no case law supporting its position.”
While the filing of this case does, in fact, predate the decision in the Fourth Estate case, the Supreme Court’s decision is “nevertheless binding on all lower federal courts unless and until the Supreme Court decides to revisit it,” Judge Chen asserts, and with that, dismissed the case.
Not quite the meaty decision we were hoping for (i.e., one that would address the co-authorship and fair use claims that Hadid’s counsel made), particularly given the shifting understanding of image ownership in the digital era and the growing number of paparazzi v. celebrity copyright cases, it is a decision, nonetheless.
*The case is XCLUSIVE-LEE, INC., v. JELENA NOURA “GIGI” HADID, 1:19-cv-00520 (E.D.N.Y.).