Gigi Hadid, a world-famous supermodel, is embroiled in another copyright dispute after being sued for copyright infringement by paparazzi company, Xclusive-Lee Inc.

The material in question is a photograph of Ms Hadid taken by one of Xclusive’s photographers in public. In the photograph, Ms Hadid poses whilst in a public street. Ms Hadid noticed she was being “papped” and decided to put on a pose for the camera. She subsequently posted the image onto her Instagram account, which currently has 48.2 million followers. Needless to say, the image has since been taken down.

Xclusive argue that Ms Hadid’s use of the image amounts to copyright infringement as she is not the licence holder of the image and she did not get permission from Xclusive to use it nor did she pay a licensing fee.

Ms Hadid’s lawyers have, in turn, argued that the use of the photo amounts to Fair Use under section 107 of the US Copyright Act of 1976 and filed a Motion to Dismiss.

When deciding whether or not there has been Fair Use of copyrighted material, the court considers 4 elements:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Ms Hadid’s lawyers argue that she did not earn any direct profits from the photo nor did she use the image to sell a product. They also argue that the image should be considered a “factual” work as opposed to “creative” work given that the photo was taken in public, spontaneously, much like a person taking a photograph on their smartphone. It was not taken in a studio-type setting.

The issue of whether the image is “transformative” was brought up, with Ms Hadid’s lawyers asserting that it was, given that she edited the photo before posting on Instagram. Also mentioned was the fact that Ms Hadid stopped and posed for the photo and, as such, should be considered a joint author of the photograph given her creative contribution and should gain an implied licence (and therefore have rights in the image). She also claims that the Instragram post did not deprive Xclusive of revenue.

Xclusive countered by saying that the image is not “transformative” as it is almost identical to the original image, albeit cropped slightly. With regard to the commercial argument run by Ms Hadid, Xclusive argues that, whilst she has not made direct profits from the image, she has made indirect profits from it (i.e. her profile has directly benefitted from the image, and it is her profile that generates a substantial income through sponsorship deals etc.).

As for Ms Hadid’s “factual” vs “creative” argument, Xclusive argue that the photo is more than merely an image taken spontaneously with no creative input whatsoever. Rather, the photo is creative because the photographer used professional techniques such as the “shooting angle”, timing and lighting to take the image.

Xclusive’s main criticism for Ms Hadid’s Motion to Dismiss centred on the implied license argument. This was vehemently refuted because, according to Xclusive, if this argument were accepted, then the majority of the authors of copyrighted material would suddenly find that their rights in copyright have been severely diminished, as a person who is the subject of a photo could claim an interest in its copyright because they had posed or smiled in some way, and therefore added to the creativity of the image.

It will be interesting to see how this case concludes, given that the extent of a person’s rights in a photograph taken in public by someone else could well change. If the case is decided, as opposed to being settled, then it will shed some more light on the rules for celebrities who use other people’s photos of them on social media.