Supermodel asserts Instagram post transformed paparazzo’s shot into personal statement

And Now for Something Completely Different …

The coronavirus, rightly, has consumed all our excess time, and then some. But we don’t want to miss out on the relative pleasures offered by some of our pre-pandemic preoccupations when they crop up here and there.

Take, for instance, the paparazzi lawsuit. Yes, it seemed like a scourge in 2019, but then 2020 came along, put down its beer and gave us a shot of the real thing.

Nonetheless, developments in paparazzi legal battles have continued, and we have some interesting news regarding supermodel Emily Ratajkowski’s dustup with photographer Robert O’Neill.

If you don’t know Ratajkowski, she’s one of the three … shall we say scantily clad women in Robin Thicke’s “Blurred Lines” video, a production that, in the age of woke awareness, stirred up a backlash and has not matured well (go find the video on your own time). Like many celebs who launch their fame through controversial means, Ratajkowski has come to regret her debut; nonetheless, she used her notoriety and talent well and became quite famous. That, of course, has earned her predictable attention from the usual suspects.

A Confederacy of Models

In October 2019, the model was named in a complaint in New York’s Southern District by O’Neill, who accused her of copyright violations when she allegedly posted one of his photos of her to her Instagram account. He had licensed the photo to the Daily Mail but claimed that Ratajkowski had not licensed it from him.

The case chugged along until September 2020, when Ratajkowski filed for summary judgment. O’Neill replied with his own motion for summary judgment a month later, and there have been dueling memoranda in support from both parties since.

While there has been no response from the court to this preliminary sparring, Ratajkowski’s arguments are interesting and echo those from an earlier case we covered featuring supermodel Gigi Hadid. In that suit, Hadid claimed fair use of the photo, arguing that she had done nothing more than repost the image and that reposting “reflected a personal purpose different than the photographer’s purpose in taking the photograph, which was to commercially exploit Ms. Hadid’s popularity.”

The Takeaway

The case against Hadid ended without the argument ever having been addressed – the photographer failed to demonstrate that he held copyright, and the court tossed the suit. But Ratajkowski seems to have been inspired by her predecessor, perhaps having the defense in mind before O’Neill ever snapped the offending picture.

The photo Ratajkowski reposted depicted her walking down the street holding bouquets of flowers that obscured her face; she added the caption “mood forever” to the bottom of the snap. According to her most recent filing, the pose itself, as well as the caption, transformed the purpose of the photograph sufficiently to trigger a fair use defense. “Rather than merely documenting her location or her clothing,” her reply states, “the [post’s] purpose was to comment on the way Ms. Ratajkowski is constantly hounded by paparazzi like Plaintiff, and how not even shielding her face will stop them from trying to exploit her image.”

Hey – everyone wants creative control. Ratajkowski’s argument places the posture she assumed when she knew the picture was being taken at the center of the legal argument (her caption serves a similar purpose in her account). It’s a bold assertion of power and ownership over her own image.

We’ll let you know if her gambit gets any further than Hadid’s.