Gigi Hadid attempts to redefine copyright law

Earlier this year model Gigi Hadid was sued by an agency, Xclusive Lee, for posting an image of herself on her Instagram account. The agency was the author of the image and Hadid’s use of the picture violated its copyright.

Recently, Hadid had filed a motion to dismiss the suit asserting that her use of the image constitutes fair use as she contributed to the image through her smile and outfit. This is indeed a novel argument and could fundamentally change how Instagram reports function and what is allowed on the platform.

Hadid’s argument challenges the long-held assumption that photographers have full copyright over images captured by them, particularly in public.

The memorandum of support states that Hadid did not infringe on any copyright as she “posed for the camera” and “contributed many of the elements that the copyright law seeks to protect”. In addition to this, her team emphasises that she cropped the image when she posted its thereby focusing her followers on her pose and not the photographer’s composition.

Hadid further asserts that her purpose of posting the picture was a personal one and she did not exploit the picture commercially.

The most controversial argument put forth by Gigi’s legal team is that of an implied license. Her team states that the use of the photograph is permissible as there was an implied license by conduct. They argue that Hadid encountered the photographer, stopped and permitted the photographer to take her picture by posing and contributing to the image. The photo was a result of mutual actions by the model and the photographer. In such circumstances a license should be implied permitting Gigi to use the photograph.

If this argument succeeds it could change the way celebrities use images of themselves under copyright.

In opposition Xclusive Lee has argued that Hadid made commercial gains by posting the picture owing to her huge number of followers on the platform. This might be a risky argument for the agency. If they suggest that posting a picture on Instagram amounts to commercial use simply because she is a famous model, would that mean that taking her photo without her permission in the first-place amounts to infringement?

Further, the agency states that the model cannot claim fair use as her use of the image was not of transformative character. They argue that in order to qualify as fair use, the second work must either make some critical use of or change to the original work. However, Gigi posted the picture in a “barely cropped” form in order to depict the original picture.

Xclusive Lee asserts that Gigi attempted to bypass license fee by directly taking the picture from social media. The agency states that Hadid lives in her own “imaginary world” and her legal approach is “alarming” for its blatant attempt to rewrite established legal doctrines.

This case could change the way celebrities deal with paparazzi pictures. It can end the saga of cases against celebrities for posting pictures of themselves on their social media. This case will also have an influence on what fan image accounts are allowed to repost. Celebrities like Kim Kardashian West only post pictured owned by them so that the fans can repost those images without the fear of paparazzi claiming ownership.

Several celebrities have faced lawsuits for posting paparazzi pictures on their social media. Earlier this year, a similar suit was brought against the Grammy winning singer Ariana Grande for posting a picture of herself on Instagram. Celebrities like Khloe Kardashian have also found themselves in trouble for similar reasons.

“You may be in the photograph, but that does not give you the right to use it without the permission of the photographer.” This case could fundamentally change the way this statement is interpreted in the coming years.