A Fashion Paparazzi Prevails In A Copyright Infringement Action: Striking the Right Balance in Fair Use Seems Elusive
A fashion paparazzi who took a photograph of Bella Hadid, a supermodel, initiated a copyright infringement action against a fashion brand that subsequently posted on its Instagram the paparazzi's photograph. The photograph features Bella Hadid donned in the brand's latest outfit. In a four-page complaint filed with the Southern District of New York, the paparazzi alleged that he had neither authorized nor consented to the use. See Complaint, Jawad Elatab v. Hesperios, Inc., 1:19-cv-09678 (S.D.N.Y. Oct. 20, 2019). Hesperios asserted that its Instagram post constituted a fair use, but a S.D.N.Y. judge disagreed, denying Hesperios' motion to dismiss on the question of fair use.
In his Order, Judge Andrew Carter found that Hesperios' use of the photograph in question did not amount to fair use. See Order, Jawad Elatab v. Hesperios, Inc., 1:19-cv-09678 (S.D.N.Y. Jun. 2, 2021). Judge Carter found that all four fair use factors weighed in favor of the photographer. The factors are: (i) the purpose and character of the use, (ii) the nature of the copyrighted work, (iii) the amount and substantiality of the portion taken, and (iv) the effect of the use upon the potential market. I largely agree with his analysis, except the part where he discusses the fourth factor - the effect of the use upon the potential market.
(i) The purpose and character of the use
The first factor essentially asks the following question: Is the use transformative? That is, does the infringing work (here, Hesperios' Instagram post) add something new? Hesperios claimed that the post was transformative because its central purpose was "to invite its Instagram followers to provide commentary on the photograph." Id. at 5. Yet, the judge stated that such characterization belies the post's purely commercial nature, especially in light of the fact that it was accompanied by the caption that reads "Available Now in Summer Colors". Id. Moreover, the evidence indicated that Hesperios authorized its marketing agency to share the post to maximize the exposure. Id. Taken together, Hesperios' commentary claim was evidently pretextual. Admittedly, a presence of commerciality alone does not preclude a finding of transformativeness. Rather, it is a relevant consideration or "a sub-factor", as the judge calls it. Id. In this context, the judge correctly concluded that Hesperios "has failed to demonstrate that its post was anything other than commercial use to advertise its clothing." Id. at 6.
(ii) The nature of the copyrighted work
The second factor launches an inquiry into whether the work is creative and unpublished. A creative and unpublished work is generally given stronger protections for the purposes of fair use. Citing an earlier S.D.N.Y. case that found a photograph of a model presumptively creative, the judge stated that this factor favors the photographer. Id.
(iii) The amount and substantiality of portion taken
The third factor primarily engages with the question of whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying. Another way of thinking about this question is to determine how much taking is necessary so as to effectuate the intended purpose - yes, transformativness. In this light, the analysis of the third factor, oft-times, is closely connected to that of the first factor. Here, Hesperios alleged that it was necessary to take the entire photograph to sparkle public commentary. Having already found the commentary claim pretextual, the judge rightly pointed out that this factor weighs in favor of the photographer. Id. at 7.
(iv) The effect of the use upon the potential market
The fourth factor principally deals with the issue of whether the infringing work adversely impacts the potential market for the original. The judge concluded that "[Hesperios'] posting of the photograph to promote its clothing certainly has the potential to supplant the market for the photographer to license the photograph". Id.
Here, I think the judge's formulation was rather broad. Of course, every infringing use has the potential to negatively impact the potential market. However, I can't quite imagine a scenario in which newspapers or magazines that want to use the Bella Hadid photograph would go to Hesperios instead of the photographer. Therefore, I'm not quite convinced that this one single infringing use would certainly deprive the photographer of his potential licensing income.
Those who have followed me for months now well know that I have many qualms about the whole paparazzi apparatus that profits off of supermodels. These supermodels too have never consented to being photographed by paparazzis in invasion of their privacy. The idea that these paparazzis then can turn around and argue non-consent as a sword to go after the supermodels (i.e. Gigi Hadid and Emily Ratjawaski) and, relatedly, fashion brands is still puzzling to me. This lawsuit was a relatively easy call because of the fashion brand's outlandishly commercial motive. Still, at the back of your mind, I want you to ask yourself the following question: To what extent should the copyright system afford protections to paparazzis? This surely is a difficult question that requires a careful balancing act, but for now, it seems to me that fashion paparazzis' modus operandi remains quite unimpeded in the copyright universe.
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