Making A Statement: Emily Ratajkowski Fights Back Against A Paparazzi Photographer

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

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This semester, I took a Fashion Modeling Law class and wrote a research paper that made a case for a federal right of publicity statute. I pointed out that different states have varying degrees of protections, which create unpredictability in enforcing a model's right of publicity, especially when the omnipresence of social media all but guarantees that potential violations can occur literally anywhere. The paper was largely inspired by the case of Gigi Hadid, which I discussed at great lengths in an earlier post, because the case illustrates how enmeshed copyright and the right of publicity are in the world we are living in. Another supermodel found herself dragged into a copyright infringement lawsuit by a paparazzi photographer. Emily Ratajkowski posted on her Instagram story a paparazzi photo of herself hiding her face with a bouquet of flowers, and the photo had the accompanying caption that reads "mood forever" (picture above). Emily Ratajkoswki forcefully claimed that she was making a statement: that her life and those of fellow models are savagely intruded upon by the whole paparazzi apparatus. If you are an avid reader of this blog, something have must popped up in your mind by now. Yes, fair use! So far, I've never done a fair use analysis that involved commentary, so I am using this case to explore how the fair use defense analysis might come out differently. 

There are four factors that a judge can look at to arrive at a finding of fair use. The factors are: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of portion taken, and the effect of the use upon the potential market. See generally Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Emily Ratajkowski's characterization of her use as a commentary goes to the question of the purpose and character of the use. This factor essentially evaluates how transformative an allegedly infringing use is. Courts no longer place much emphasis on whether the use is commercial or non-commercial, although that demarcation played a certain role back in the days. The Copyright Office also makes crystal clear that not all non-commercial uses are presumed to be fair. However, the fact that Emily Ratajkowski's Instagram story post is making a commentary on the state of affairs does figure prominently in many court cases. If a use is intended to criticize or critique a copyrighted work, the factor normally works to the advantage of the alleged infringer. This is why book reviews largely receive fair use protections. So the case is likely to determined largely on how persuasive Emily Ratajkowski's commentary claim sounds to the ears of the jury or the judge. As of now, I think only factor that can be in favor of the paparazzi photographer is the amount and substantiality of the portion taken. However, even there, the court might find that Emily Ratajkowski had no choice but to take the entire photograph to send her message. That is exactly what happened in the Supreme Court's ruling in Campbell, although the case concerned a parodic work. There, the Court concluded that the parodic nature of the infringing work inevitably "[sprang] from recognizable allusion to" the copyrighted work. Id. at 588. I believe that the same logic can apply in the commentary context. The attorneys can advance a cogent argument that there was no alternative way of making her statement without posting the photo itself that caused her emotional harm.

I am near certain that the legal turf between models and paparazzi photographers would continue. Gigi Hadid and Emily Ratajkowski will surely not be the first nor the last to be embroiled in this type of lawsuits. This is precisely why I argued, hopefully convincingly, in my research paper that Congress should step up and enact a statute that establishes a federal right of publicity, which is wholly necessary to level the playing field. On one hand, you have these paparazzi photographers who are armed with strong federal copyright protections while, on the other hand, you have these models who can only find recourse either in a state right of publicity or a fair use defense. Paparazzi photographers make money off of their paparazzi photographs through licensing, and, in that process, are mercilessly blind to the moral rights of models. Models should be able to do their jobs, unencumbered by unwanted invasions on their private lives. Even from the intellectual property right perspective, these supermodels have spent their whole careers in one of the most competitive industries to perfect their art of modeling and burnish their reputations, finally allowing them to command high fees in the world of fashion. It just hurts my moral sensibilities that paparazzi photographers can escape potential liability without being held accountable. They complain that their copyrights in their "photographic works" are infringed when they are the ones who encroach upon the moral and property rights of models. Surely, I am making a statement here.