Are paparazzi claiming their just deserts or simply extorting helpless celebs?
When you cover influencers who run afoul of advertising ethics, you get used to certain familiar names and faces: Kanye West, the Kardashian du jour or pick a Jenner ‒ to name the most famous few.
Supermodel Jelena Noura “Gigi” Hadid, veteran of countless gigs for Versace, Chanel, Marc Jacobs, Diane Von Furstenberg and Tommy Hilfiger, has now joined this infamous crew. She’s appeared on the cover of (and inside) pretty much every national flavor of Vogue, as well as Allure, W, Elle, Grazia and Vanity Fair. Her Instagram account has 45 million followers. Her brother Anwar and sister Bella are both successful models as well. Gigi is fashion royalty.
Hadid has just been sued by a company called Xclusive-Lee, Inc., for allegedly copying a photo of herself for which the company holds copyright and pasting that photo to her Instagram feed without permission. The kicker? The suit, filed in New York’s Eastern District, claims that she knew she was committing copyright infringement because someone else once sued her for the same thing.
Hadid had been sued for copyright infringement back in September 2017 in Virginia’s Eastern District by one Peter Cepeda, a photographer who claims to specialize “in candid, street photography of celebrities in New York City.”
In any case, Cepeda’s case settled in a matter of months on unspecified terms. But the Xclusive-Lee case abides.
Even though the photo was removed from Hadid’s Instagram feed, the plaintiff still seeks monetary damages based on the time the photo remained online, as well as an injunction against future use of the photo. In addition to this photo, Xclusive adds another layer to the case by claiming that her “Instagram account includes at least fifty examples of uncredited photographs of Hadid in public, at press events, or on the runway. Most if not all of these photographs were posted by Hadid without license or permission.”
How will Hadid respond? There have been no additional substantive filings in the case so far, but other influencers have argued right of publicity to attempt to seize control of their likeness in similar cases. Check out NFL player Odell Beckham’s lawsuit against a photographer and his agency ‒ Beckham took a more proactive approach and sued first when the agency demanded $40,000 from him for behavior similar to Hadid’s. Beckham’s suit essentially accuses the agency and its shooter of running an extortion campaign; right of publicity charges are his response.
Beckham’s case is still wending its way through the courts, but Xclusive beat Hadid to the punch. We’ll keep you up to date on how both cases develop. In the meantime, keep in mind that right of publicity and copyright are two entirely different rights. The photographer owns the copyright in the pictures she takes, even if they depict other people, and the people in pictures have a right of publicity, which allows them to limit association of their name and likeness with commercial products and services. Editorial publishers may have some First Amendment rights to use without a license, but advertisers have to procure both a copyright license to a photo and a model release of the person depicted.