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Case Law Update: Of Paparazzi, Models, and Copyright

Updated: Oct 1, 2019

Be careful what you wish for.  In a recent Federal case in the Eastern District of New Year, model Gigi Hadid prevailed on a motion to dismiss a copyright infringement claim. XClusive-Lee,m Inc. v. Jelena Noura "Gigi" Hadid, 1:19-cv-00520 (E.D.N.Y.). In fact, the premise of the dismissal was simple: the paparazzi suing for copyright infringement, XClusive-Lee, had only applied for copyright, rather than actually obtained the copyright, to the photo in question. Hmm, you think they might have known that, but, alas…  


In essence, the story goes as follows. XClusive-Lee had taken a photo of Ms. Hadid. Ms. Hadid then posted the photo of herself to her Instagram account. In an ironic twist, the paparazzi became irked by the subject's use of her own image. XClusive-Lee sued, claiming Ms. Hadid's use of her own photo infringed on XClusive-Lee's copyright. She may be a subject and a target, but apparently, she is not welcome as a user of their work product.



The court decided that in light of XClusive-Lee not actually having a valid copyright to the image at the time it filed the suit, it had no rights to vindicate, “The registration requirement is ‘[a] statutory condition’ under which a plaintiff must obtain registration of a copyright in a work ‘before filing a lawsuit’ based on infringement of that work."


Unaddressed by the court as it dismissed the suit was the question of whose right is it to control how other’s profit from a celebrity’s likeness? In other words, the court did not reach whether or not Ms. Hadid's posting of the photo would be protected under a fair use argument. It’s not the first time this issue has been before the courts, certainly. The issue, however, is that the copyright law was enacted long before the internet and the ability of people to widely disseminate information.  Thus, situations like these beg the question: are copyright laws outdated and in need of some good-ole fashion tweaking? The courts over the years, of course, have delineated how copyright laws should apply in the dawn of the internet and the resulting ability to disseminate information quickly. (Look at the Napster case for one, which greatly influenced the music industry). The jurisprudence, however, still has a lot of catching up to do.


The court did note, and perhaps it is foreshadowing case law to come, that it seemed incongruous for the paparazzi who profited from the exploitation of Ms. Hadid's image, after hunting her down to obtain the image, to then sue her for money damages because she had the audacity to post the picture of herself on her Instagram account. Fair point, we say, fair point.


Elle J. Byram is a native Midwesterner, born and raised in the Kansas City area.  Elle earned her law degree at the University of California Davis, School of Law.  She earned her Bachelors in Psychology at the University of Colorado at Boulder as well as a Masters in clinical psychology at Pacific Graduate School of Psychology in Palo Alto, CA. Elle has worked for small and large firms doing litigation, corporate work and technology. 


Desiring to start her own practice, Elle stepped out of the corporate world in 2013 and began her own solo firm focused on family law, estate planning and probate administration. Elle's practice focuses primarily in family law, where Elle litigates divorces, represents victims of domestic violence and assists in every other aspect of family law. 


Elle recently joined the Colorado Collaborative Divorce Professionals group to find alternative means to resolve divorces amicably.  Most of Elle's practice is focused in the mountain and rural regions of Colorado.  Elle is licensed to practice law in Colorado, Kansas, Missouri, California.

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