Grab the Popcorn

The story so far: Supermodel extraordinaire Gigi Hadid was sued in February by a company called Xclusive-Lee Inc. for allegedly copying a photo of herself that Xclusive-Lee owned and posting it to her Instagram account. Got it?

But this suit came on the heels of a previous suit, a since-settled case in which she was sued for copyright infringement in Virginia’s Eastern District by paparazzo Peter Cepeda. The accusations? Exactly the same behavior. Xclusive-Lee even cited Cepeda’s suit in its complaint as proof that Hadid knew exactly what she was doing, and why it was wrong.


Quick Snaps

So, as promised, we bring you news of some more movement in the more recent case, including two new filings.

First is Ms. Hadid’s motion to dismiss, and it’s fun stuff: Hadid attempts to dodge the suit altogether by claiming that her posting of the photo was fair use.

In the motion, Hadid argued that “[a]ccording to [Xclusive-Lee’s] complaint, Ms. Hadid merely reposted the photograph to her Instagram page and made no effort to commercially exploit it. Her reposting thus reflected a personal purpose different than the photographer’s purpose in taking the photograph, which was to commercially exploit Ms. Hadid’s popularity.”

Moreover, the motion read, the shot was nothing but a friendly photo taken on a city sidewalk – “a factual work, not a creative one, thus favoring a determination of fair use.” Hadid also argued that she stopped and posed for the shot, and therefore had some stake in the final product’s ownership since she collaborated with the photographer.

The Takeaway

Xclusive-Lee’s opposition memo is a masterwork of outrage. Here’s a representative passage: “Concerning Hadid’s assertion that she somehow maintains joint copyright in the Photograph because she noticed the photographer and smiled at the moment the photographer chose to snap the shutter is preposterous,” Xclusive-Lee responds. “Ms. Hadid is as much a joint copyright holder in the Photograph as the subject of a biography is joint copyright holder to the words used by the author to describe her life.”

The counterargument breaks down Hadid’s motion, maintaining that her use of the work was not transformative – “Hadid has not claimed she copied and posted the Photograph for any of the established albeit narrowly defined statutory allowances, including commentary, criticism, reporting, or research.” Her argument regarding commercial use of the photograph, the complaint claims, is similarly misguided; since Hadid is a successful model, the use of the photo granted her an indirect commercial advantage.

Hadid had also argued that her posing for the camera created an implied license between the photographer and herself, and this assertion comes under withering fire:

“If a model poses for a sculptor, does she possess an implied license to appropriate the work? If an individual provides a quote to [a] reporter for a story, does she possess an implied license to appropriate the work? If an individual cooperates with an author on a biography, does she possess an implied license to appropriate the work. Of course not. If Hadid’s approach to the issue of an implied license were adopted, the copyrights of the majority of the world’s authors would be obliterated because the only requirement for an implied license would be for the subject of a work of original art would be to claim (not very convincingly) that she winked, smiled, nodded, or otherwise communicated her acceptance to the author.”

Tons of drama. More to come, we’re sure, and we’ll be following it all.