http://ipkitten.blogspot.com/2019/08/gigi-hadid-instagram-copyright.html
Readers may have been following the case of Gigi Hadid and her Instagram post here and here. Where the model was sued by Xclusive for posting a picture of herself on her social media account that was taken by a photographer represented by the Xclusive agency.
The case raised some interesting arguments around the relationship between celebrities and paparazzi and the use of the resulting images, particularly what amounts to fair use in these circumstances and whether the celebrity has a stake in the copyright of the image, or at least an implied licence. [Discussed in more detail here].
However, sadly for us copyright nerds, but gladly for Hadid, the plaintiffs claim was dismissed for failure to state a claim under Rule 12(b)(6) based on Plaintiff’s failure to meet the statutory registration pre-filing condition.
| When you think you’ve got it covered… Image: Heidi De Vries |
As the Supreme Court has held, 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. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010). This was confirmed in the Supreme Court’s recent decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019)—a case interpreting the registration requirement established in § 411(a), rejecting the position that a copyright owner effectuates registration when it “submits the application, materials, and fee required for registration,” and instead held that registration occurs “only when the Copyright Office grants registration.”
However, Xclusive could only show that it had filed for copyright registration, but it had not been formally granted before filing the complaint against Hadid. Therefore, the Court dismissed the plaintiff’s case for failing to comply with the registration requirement.
Moreover, the Court declined to grant Xclusive leave to amend its complaint should its copyright application be approved in the future (citing Malibu Media, LLC v. Doe, No. 18-CV-10956 (JMF), 2019 WL 1454317 (S.D.N.Y. Apr. 2, 2019).
No doubt, this won’t be the last Instagram infringement case, but for now the questions raised by this case remain unanswered!
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