New York photo agency Xclusive-Lee, Inc. filed a copyright lawsuit back in January 2019 against Jelena Noura Hadid, more commonly known as fashion model Gigi Hadid, for posting photographs without permission or consent.

The photograph in question was posted back in October 2018 by Hadid on social media site Instagram without the owner’s consent and she was subsequently threatened with legal action shortly afterwards.

The photograph, below, was of Hadid posing for the camera whilst wearing silver heels and a matching denim jacket and shorts set. Xclusive state that they own the copyright of the photograph which was taken by the paparazzi.

Credit: XCLUSIVE-LEE, INC., as it appears in the complaint

Although Hadid did take the photograph down, it was not before 1.6 million of her then 44 million followers “liked” the photo.

Hadid’s History with Copyright

Hadid has been in trouble for copyright infringement following the posting of images in Instagram in the case of Peter Cepeda v. Jelena Noura “Gigi” Hadid and IMG Worldwide, Inc ., 1:17-cv-00989-LMB-MSN (E.D. Va.) (2017).

Back in 2017 Hadid was sued by photographer Peter Cepeda, for copying and pasting photographs of herself without his permission onto social media. The case was settled out of court however the complaint was served on Hadid, indicating the model is well aware that care needs to be taken when posting photographs online.

The 2017 case has been referred to in the current Xclusive complaint due to its many similarities. A number of other photographs are also detailed in the complaint – exhibited as other examples of photographs posted by the model which also are described as unlicensed.

As such, Xclusive state that the use of the photograph was “ willful [sic]and intentional, in disregard of and with indifference to the rights of infringement Xclusive”, and highlight Hadid’s apparent disregard for copyright by making conscious decisions to post those photographs.

Right of Publicity

This claim reignites the debate around the value and ownership of photos taken by paparazzi.

The law of the right of publicity in parts of the USA prevents the unauthorised commercial use of a person’s name, likeness or attributes which are recognisable as belonging to that celebrity. Individuals have sought to rely on this to obtain rights in images taken without that celebrity’s consent which are then licensed without the subject’s permission.

This was the position taken by New York Giants wide receiver Odell Beckham in the New Orleans Courts, after he posted an image of himself on Instagram, as below.

Credit: Splash News & Picture Agency, LLC and Miles Diggs.

The image belonged to Miles Diggs and California-based Splash News & Picture Agency who tried to charge him $40,000 for the post of him on crutches.

Beckham then suited, claiming “declaratory relief against Defendants regarding their pervasive and coercive practice of photographing celebrities without their knowledge, selling those celebrity photographs to gossip websites and publications for profit, and then demanding payment from the celebrity for purported copyright infringement.”

The claim considers the right for celebrities to have a right to images in which they appear, and which have been taken without their permission. Beckham claimed that the value of the image was solely reliant on him being the subject and therefore had at least some right to it.

Moving Forward

The Beckham case is yet to be resolved and may prove useful in clarifying where the balance lies between right of publicity and copyright.

Should the Beckham decision go his way, Hadid may still find it easier to counter claim although the likelihood of a decision undermining the value of a photographer’s copyright will likely be limited.