By Sarah Jenkins
Senior Educational Materials Specialist, Copyright and 508 Compliance, APUS

It was once a rare occasion when the worlds of intellectual property law and pop culture would collide. But in the litigious climate of our country, copyright law and celebrities’ pervasive use of social media have made such collisions commonplace.

On January 28, American fashion model Gigi Hadid was sued by Xclusive-Lee, Inc. The New York-based photo agency is seeking damages for copyright infringement involving a photo of Hadid that she posted on her Instagram account on October 12, 2018.

Agency Claims Hadid Posted Photo without Legal Permission

The photo was a typical paparazzi image taken of Hadid leaving an event in Manhattan on the day before; it has since been removed from her Instagram page. Xclusive-Lee, Inc. claims that Hadid “copied and uploaded” the image without “license or permission from Xclusive,” despite the company’s “exclusive rights to reproduce and redistribute the Copyrighted Photograph to the public.” The resolution of Xclusive-Lee, Inc. v. Hadid remains to be seen.

This is not the first time in recent years that a well-known celebrity has been sued for this type of alleged infringement and it certainly won’t be the last. Hadid faced a nearly identical lawsuit in September 2017.

Earlier, in April of 2017, reality television personality Khloe Kardashian was sued by Xposure Photos UK Ltd. The Kardashian case and the September 2017 suit against Hadid were settled out of court for undisclosed sums of money.

Celebrities have made their opinions known about these cases in a number of ways. The most common method is on social media. Upon hearing of the impending lawsuit, Hadid took to Instagram on October 18, stating “…these people make money off us everyday [sic], LEGALLY stalking us day in and day out — for nothing special…”

In response to social media fan accounts being suspended for posting copyrighted images of their favorite celebrities, Kardashian tweeted: “How can they be mad at everyone for posting? Literally sooooo many people do it….” She followed that up with “I would assume if you give them [photo] credit they would let you guys use them.” Here lies the primary issue with social media, copyright law and the business of celebrity photography.

Intellectual Property Law Is Still Misunderstood and Needs to Catch Up to Modern Information Sharing

Kardashian and Hadid’s statements are excellent examples of the prevailing misconceptions regarding copyright law as it pertains to photography. Many people believe that it is enough to give the photographers photo credit when posting their images on social media. Also, there is the misconception that candid photos of celebrities taken by a frenzied horde of media are fair game.

Both notions are simply not accurate. The issue will be debated until intellectual property law catches up to modern methods of information sharing.

As it stands today, the Copyright Law of the United States (Title 17, United States Code) gives sole distribution and reproduction rights to the authors or the employers of authors of all creative works, including photographs like those of Hadid posted on Instagram. The law says Hadid owns the rights to photos she takes (“selfies,” for example). But photographers, publications and media entities own the rights to any photos they take or purchase from independent photographers, like paparazzi.

Money Is the Reason for Many Copyright Lawsuits

What is the rationale for these intellectual property lawsuits? Why do media outlets and photographers sue celebrities who share images of themselves? The answer, of course, is money.

At its heart, the Copyright Law is intended to ensure that the creative people who are responsible for “the Progress of Science and useful Arts” continue to create. Whether paparazzi photos and Kardashian fan pages should be considered “useful arts” is another topic altogether.

But it is important to understand that photographers and organizations like Xclusive-Lee, Inc. make money on photos of celebrities. Copying, printing or uploading photos without permission or purchase denies their owners income they are entitled to by law.

Celebrities and Paparazzi Have Long Had a Contentious Relationship

Celebrities have a notoriously contentious relationship with the paparazzi. But in cases like those of Hadid and Kardashian in particular, the relationship is often symbiotic.

Photographers earn a living taking candid photos of celebrities at public events, on the beach or just walking down the street. The brighter a celebrity’s star shines, the greater the number of photos that are taken of that person.

The result of this symbiotic relationship is that the photographers make money and the celebrities remain in the public eye. That increases the earning power of both parties. When a celebrity’s image is no longer in the news, that celebrity’s “value” fades.

Writers experience the same dilemma. Let’s say you’re an author who has devoted years of time, effort and money for research to writing a novel. You sell your novel to a publisher, and for each book sold, you receive a financial royalty that rewards you for your effort.

What would happen if a third party reprinted your novel and published it free or at a reduced cover price? You and your publisher would earn nothing.

Intellectual property law serves a greater purpose than simply inconveniencing Instagram users. It protects and encourages innovation, one of the most important driving factors of cultural, scientific and economic growth not only in the United States, but globally.

As for Xclusive-Lee, Inc. v. Hadid, it would probably be wise for Hadid to settle out of court as she and other plaintiffs and defendants have done before. As these types of cases continue to make the news, they may prompt some changes in intellectual property law as it pertains to the images of public figures and the “right of publicity.”

However, there undoubtedly will come a day when a case like this makes its way into a courtroom. The judgment of the court could significantly alter how images and other creative works are shared in print and on TV and social media.

About the Author

Sarah Jenkins has worked as a Copyright/508 Compliance Specialist at APUS since 2011. She received her master’s in art history from George Mason University in 2012 and currently teaches online courses in art appreciation and the humanities.