Fendi Is Sued over An Instagram Photo
This April, Fendi was sued by a professional photograph company over a photograph Fendi posted on its official Instagram. The photograph in dispute features Blake Lively arriving at the Good Morning America studio, dressed in Fendi from head to toe. Fendi posted the photograph along with the hashtag #FendiSS20 to point out to its viewers, or potential customers, that the items are from the brand's 2020 Spring/Summer collection. The photograph, however, was a copyrighted work, as evidenced in the complaint the photograph company filed with the United States District Court for the Southern District of New York. Thus, the photograph company alleged copyright infringement since there was no licensing agreement between the parties in connection with the photograph.
Social media platforms, such as Instagram and recently Tik Tok, have become a source of intellectual property-related lawsuits. For example, Gigi Hadid was sued, to the consternation of many (surely herself included), by a photograph company specializing in paparazzi photographs when she posted on her official Instagram a photo of herself taken by a paparazzi working for the company. (See my previous post for more information.) Her post was for non-promotional purposes. In the present case, Fendi is hard to escape the blame because the Blake Lively photo, in conjunction with the accompanying hashtag, was definitely aimed at promoting the brand and its products. In May, the photograph company voluntarily dismissed the lawsuit, suggesting that the case was settled between the parties.
One interesting point about the complaint is its claim for relief section. The photograph company characterized Fendi's action as "willful, intentional, and purposeful". Proving intent is not an easy job. Fendi might have been just sloppy. So why bother with proving intent when there is a high evidentiary hurdle? The answer is 17 U.S.C. § 504. The section, in relevant parts, provides that "the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000" per work if infringement was committed willfully. A lesson for luxury brands? If you plan to use a celebrity photo as a sales pitch, it is a safe bet to assume that the photo was taken by a professional photographer who is represented by an agency. A little bit of research will save you time, money, and most importantly, bad publicity.
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