Photojournalist Matilde Gattoni filed a lawsuit against the clothing company Tibi on the grounds of copyright infringement and violation of the Digital Millennium Copyright Act (DMCA). Gattoni alleged that Tibi had posted part of one of her photographs on its Instagram page along with the caption “Palette” and a camera emoji, and also tagged her Instagram handle without her permission (side by side comparison below, with Gattoni's original photo on the left).

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The court dismissed Gattoni’s copyright claim, without prejudice, due to Gattoni’s failure to obtain a copyright registration for her photo prior to filing the complaint. Courts are currently split over how to interpret the pre-suit registration requirement—some courts hold that a pending application satisfies the requirement, while other courts have held that a certificate of registration is required as a pre-requisite to suit. Although,Gattoni had submitted an application to register the photograph at issue, the copyright registration number was still pending at the time the complaint was filed. The court noted that, though the Second Circuit has not addressed this issue, district courts require that a plaintiff either hold a valid copyright registration or have applied and been refused a registration before a copyright infringement lawsuit can be filed.

However, the court refused to dismiss Gattoni’s claim that when Tibi used and modified her photo, it violated the DMCA by intentionally removing or altering copyright management information (which includes the title and other information identifying the work and its author) from a copyrighted work. The court found that the presence of a credit tag hyperlinking to Gattoni’s Instagram page undermined Gattoni’s allegation of intent, but held that even so, she had sufficiently alleged the elements of a DMCA claim.

TIP: Advertisers should exercise caution when resharing or using photos from social media platforms such as Instagram without permission, especially when the user appears to be a professional and has not otherwise directly engaged with the advertiser or its products on the platform.