Copyright infringement action has been brought against model Gigi Hadid for sharing an image with her 35 million Instagram without attributing it to the photographer.
Gigi Hadid is a well-known public figure, named as International Model of the Year in 2016 by the British Fashion Council, and whose image has graced the cover of many magazines. Her famous name garnered some attention in July last year when she was photographed wearing a personalised Adidas jacket, which had been customised to add an ‘H’ and remove the ‘as’ on the back of the jacket to spell out her surname. Peter Cepeda was the photographer who took the picture in question, which was subsequently licensed to publications such as the Daily Mail and was reported on around the world.
However, on 5 September 2017, Mr Cepeda brought a claim against Ms Hadid and her agents, IMG Models (IMG), for posting a copy of his photograph on Ms Hadid’s Instagram account. Mr Cepeda is claiming that Ms Hadid or her agents removed the credit attributing the photograph to him from the bottom of the image, and also the watermark showing that the image was subject to copyright. As a result, Mr Cepeda is claiming various forms of damages and any and all profits Ms Hadid and IMG may have made from the Instagram post. He is also asking the court to grant an injunction preventing Ms Hadid and IMG from using the photograph any further without his consent.
Although this claim is being brought in Virginia and is subject to US law, the warning applies equally to those of us located in other jurisdictions. In England and Wales, issuing copies of a work to the public without the consent of the copyright owner is an infringement of their copyright in the work. Only a party with a licence granted by the copyright owner, for example, in this instance, the Daily Mail, can lawfully deal with the work protected by copyright. Even then, any use of the work in question is restricted to what is set out in the licence. Had this matter been brought before an English Court, it would likely find that Mr Cepeda’s copyright had been infringed - the same outcome is likely in the US. It is notable that since the photo was posted on Ms Hadid’s account, it has been reproduced by various publications with copyright being wrongly attributed to Ms Hadid, or even Instagram. This may result in Ms Hadid being required to pay exemplary damages for flagrant infringement, or its equivalent under US law.
Further, in England and Wales, the creator of a work has the right to be identified as its author, which is known as a ‘moral right’. In removing the credit acknowledging Mr Cepeda as the photographer, Ms Hadid or IMG would also have breached this right, had the case been brought in this jurisdiction.
So, what lessons should be learnt from this case? Intellectual property is a valuable asset for both individuals and corporate bodies, and care should always be taken not to infringe another party’s IP rights. There are ‘fair use’ exemptions which apply in certain circumstances, such as reporting on current events, which can often save parties from being held liable for copyright infringement but this is plainly not something that Ms Hadid could rely on to avoid infringement in this case.
Even an informal setting, such as social media, does not excuse any such infringing act. Indeed, these days with social media gaining an ever-increasing presence in our lives, particular care should be taken over what is posted, and copyright should always be attributed to the appropriate owner.