Gigi Hadid Wins A Lawsuit by Her Paparazzi: Will Courts Accept Implied License in Future?

*** The writing does not, and is not intended to, constitute legal advice by any means***

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Last year, Gigi Hadid was sued by a paparazzi agency for posting on her Instagram a paparazzi photograph of herself in a double-denim outfit. The agency claimed that Gigi Hadid should have obtained a license because the photograph in question is a copyrighted work. The lawsuit against the international supermodel elicited furious responses online given the nature of how the whole paparazzi apparatus operates, namely through flagrant invasions of privacy. After all, Gigi Hadid "copied-and-pasted" the photographic work because she wanted to share it with her fans, which makes it essentially a non-commercial use.

The New York court handed a victory to Gigi Hadid more on a procedural ground than on a substantive one to the disappointment of IP-court watchers. Judge Chen stated that, in order to make a claim of direct infringement, the plaintiff has to successfully plead in the complaint that he or she has been "formally granted registration of a copyright in [the photographic work in question] from the Copyright Office at the time [the plaintiff] filed the complaint in this case". See Xclusive-Lee, Inc v. Hadid, No. 19CV520PKCCLP, 2019 WL 3281013, at *3 (E.D.N.Y. 2019). Citing the Fourth Estate case, a landmark Supreme Court decision, the judge articulated that, doctrinally speaking, the law does not accept the position that "a copyright owner effectuates registration when [he or she] submits the application for registration". Id. Therefore, the judge concluded that the agency cannot initiate this lawsuit in the first place for its failure to satisfy the registration requirement as a precondition for any direct infringement lawsuit. 

Having said so, this case presented interesting questions for IP lawyers to ponder about. The lawyer for Gigi Hadid put forth a theory of implied license, which I found highly intriguing and particularly convincing in this specific instance. Emphasizing that every case should be a fact-sensitive inquiry, the lawyer pointed out that Gigi indirectly contributed to the creation of the photographic work in question by posing and smiling while impliedly acknowledging the presence of a paparazzi. The lawyer also underlined that the commercial value of this paparazzi photograph derives substantially from Gigi's willing participation, particularly in light of the fact that Gigi Hadid, in most situations, refused to be photographed by paparazzis by covering her face with a bag. The argument, in sum, convincingly makes a case that Gigi should be treated as if she were a copyright co-owner in the eyes of the law. 

Although E.D.N.Y stopped short of addressing the implied license and, extendedly, the fair use arguments in detail (note: interesting observations would come out if the use in question is commercial in nature), the time will ultimately come when courts cannot keep artfully dodging the inherent question in paparazzi-related copyright lawsuits - whose copyright is it anyways? So, stay alerted!