With the general rise in social media usage and the decline in conventional advertising formats has come a surge in Instagram-centric ad efforts. This push to meet consumers where they are, i.e., on Instagram, and other social media platforms, has meant that the jobs of influential figures – whether it be fashion bloggers, editors and runway models or reality television stars and more traditional Hollywood celebrities – have expanded to include building and maintaining sizable social media followings in order to leverage those followings for big-money advertising partnerships.
IMG Models’ Luiz Mattos, the power agent behind the likes of supermodels Gigi and Bella Hadid, actress Priyanka Chopra, and longtime Victoria’s Secret angel Alessandra Ambrosio, put it best when he told Vogue Business that “these days, models’ jobs don’t end when they leave the studio or the runway … Your job is not only to be in front of the camera. When you finish shooting a campaign and you’re posting on social, you need to have something to say.”
The same goes for fashion editors and fashion brands that are expected to maintain carefully curated social media accounts, as well as brands. And then there are the social media influencers and mega-stars like Kylie Jenner, who earn a significant portion of their income based on social media ads. 21-year old Jenner, for instance, earns a recently-reported $1.2 million per sponsored social media post, according to Instagram analytics company Hopper HQ, in connection with her regularly updated account.
One of the glaring side effects of such increased attention to Instagram is the growing number of copyright infringement lawsuits that are being filed against individuals and brands over their unauthorized use of others’ images either of themselves, in the case celebrities and models, or of others in their wares when it comes to brands. Regardless of who appears in a photo, the individual(s) behind the creation of a photo, almost exclusively paparazzi photographers (or their employers) in these instances, are the copyright holders, and as a result, any use of images by individuals other than the copyright holder gives rise to copyright infringement claims.
Here is a list of summaries of some of the recently-filed paparazzi v. celebrity and paparazzi v. brand cases:
AUGUST 2019 – Barbera v. Alexander Wang, Inc., 1:19-cv-07540 (SDNY)
Photographer Robert Barbera is taking on Alexander Wang in a copyright lawsuit after the designer allegedly posted a photo of Dua Lipa wearing to his Instagram without licensing it or obtaining the photographer’s authorization. According to the complaint, which was filed in a New York federal court, Barbera claims that he “photographed English singer and songwriter Dua Lipa” when she was leaving the Bowery Hotel in New York in early April 2019.
While Barbera licensed the photo to other companies to use, “Alexander Wang ran the photograph on [its Instagram and Facebook accounts"] to promote its clothing” without paying to license the photo. In particular, Wang made use of the image of the singer wearing its $795 Mini Shirt Dress and $795 Halo Bag to implement stoppable links on its Instagram page to enable consumers to easily identify and shop the products, noting that the dress and bag were “now available” for purchase.
Barbera is seeking injunctive relief and monetary damages in connection with Wang’s alleged infringement.
JULY 2019 – Vila v. Monse LLC, 1:19-cv-07078 (SDNY)
Monse is in trouble for posting a photo of Jennifer Lopez and Alex Rodriguez to its Instagram account without licensing it from the copyright-holder photographer who took it. That is what Carlos Vila asserts in the lawsuit he filed against the New York-based brand in a Manhattan federal court. According to Vila, Monse – which was launched to much fashion industry fury in 2016 by now-Oscar de la Renta creative directors Laura Kim and Fernando Garcia – “is not, and has never been, licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the photograph.” Although, the photo at issue did appear to have been licensed to Vogue to use on its site.
More than that, the brand was not legally allowed to “falsify, remove and/or alter” the copyright management information, which identified Vila “as the photographer of the photograph.”
JULY 2019 – Splash News and Picture Agency, LLC v. Nicki Minaj, 2:19-cv-05822 (C.D.Cal.)
In July, Splash News filed suit against “rapper, singer, songwriter, actress, businesswoman, and entrepreneur” professionally known as Nicki Minaj” for allegedly “copying” seven different photos – including ones depicting her “in a multi-colored Oscar De La Renta gown outside of the Harper’s Bazaar Party in New York City,” “in a plaid Burberry outfit in New York City,” “at a NYFW party in New York,” and in “a cheetah print outfit” – which appear to have been licensed to and taken from the Daily Mail – and “distributed them” for display to her 91 million Instagram followers.
The well-known photo agency claims that the photos at issue “are creative, distinctive, and valuable,” and because of Minaj’s “celebrity status, [as well as] the photographs’ quality and visual appeal,” Splash News and the photographer it represents “stood to gain revenue from licensing” them. However, Minaj’s unauthorized use of the photos “made them immediately available to [her] 91 million followers and others, consumers of entertainment news … who would otherwise be interested in viewing licensed versions of the photographs in the magazines and newspapers that are [Splash News’] customers.” As a result, Minaj directly impaired “the existing and future market for the original photos.”
JULY 2019 – Vila v. Alison Lou LLC, 1:19-cv-06634 (SDNY)
Carlos Vila, a professional photographer, sued celebrity-favored jewelry company Alison Loufor copyright infringement. According to Vila’s complaint, which was filed in a New York federal court in July, Alison Lou – whose Instagram includes a running series of stories called page “Loucitings,” in which it documents sighting of celebrities and influencers wearing its jewelry – postedaphotograph he took featuringmodel Emily Ratajkowski in a pair of its earrings.
“Alison Lou did not license the photographs from [Mr. Vila] for its Instagram Story, nor did Alison Lou have [his] permission or consent to publish the photographs on its Instagram Story,” the complaint asserts.
JULY 2019 – Barbera v. Christian Siriano Holdings LLC, 1:19-cv-06155 (SDNY)
A photo of Lady Gaga from May 2018 has landed Christian Siriano in hot water. The musician-slash-Oscar winner stepped out in New York City in a striking crimson frock from the designer’s Fall/Winter 2018 collection to much media fanfare and paparazzi attention. One of the photographers who captured an image of Gaga, Robert Barbera, who asserts in his lawsuit that Christian Siriano posted the image on its Instagram without licensing the photo or otherwise seeking and receiving his authorization to do so.
JULY 2019 – Peterson v. Frame LA Brands, LLC, 1:19-cv-06583 (SDNY)
Photographer Christopher Peterson filed suit against Frame LA in a New York federal court in July, accusing the Los Angeles-based brand of copyright infringement in connection with a photo of Karlie Kloss. According to Peterson’s complaint, he took photos of the model while out in New York City in March that he licensed to the Daily Mail, which ran them alongside an caption noting that she was “a black leather blazer from FRAME over an off-white button-down top with a black pencil skirt, dark pantyhose and black heels.”
However, unlike the Daily Mail, which paid Peterson to use the imagery, Frame LA posted the images of Kloss as part of an Instagram “without a license”and without his “permission or consent” as a “tool to promote and sell its products,” thereby running afoul of copyright law.
JULY 2019 – BackGrid USA, Inc v. Citizens of Humanity, LLC, 2:19-cv-06078 (C.D. Cal.)
BackGrid – one of Hollywood’s largest celebrity photograph agencies, which “owns the copyrights to [millions of] in-demand celebrity photographs – filed suit against Citizens of Humanity in a California federal court, accusing the denim-maker and its brand AGOLDE of posting images of Sofia Richie, Jessica Biel, Zayn Malik, and Caitlyn and Kendall Jenner without its authorization.
According to Backgrid’s complaint, which was filed in mid-July, while each of the licenses it grants to “top-tier outlets, such as TMZ, Entertainment Tonight, New York Post, People Magazine, Huffington Post, the Daily Mail, as well as many television stations, newspapers and other prominent media outlets throughout the world,” is worth “up to hundreds of thousands of dollars,” Citizens of Humanity posted at least 4 of its images “on various media outlets including Twitter and Instagram to promote their clothing items” without licensing them.
JULY 2019 – Peterson v. Marc Jacobs International, 1:19-cv-06121 (SDNY)
Marc Jacobs is being sued by photographer Christopher Peterson for posting one of his photos to its Instagram without licensing the photo or receiving permission from the professional photographer. According to the complaint that he filed against the New York-based brand in New York federal court on July 1, Peterson claims that he took a photo of supermodel Bella Hadid – in a Marc Jacobs sweatshirt – and her boyfriend The Weeknd in New York in January, only to have Marc Jacobs post the copyright-protected image to its Instagram account the very next day.
Peterson asserts that while he licensed the photo to the Daily Mail, which “ran an article that featured the photograph,” he did not license it to Marc Jacobs. Yet, he claims that the LVMH-owned brand posted the image on its heavily-followed Instagram account “to promote Marc Jacobs clothing,” namely, the sweatshirt that Hadid was wearing, which was on sale at the time, and was sure to “crop off the watermark [stating, ‘Christopher Peterson’].”
MAY 2019 – Barbera v. Ariana Grande and Grandari, Inc., 1:19-cv-04349 (SDNY)
Robert Barbera is taking on Ariana Grande. According to the Splash News photographer’s suit, which was filed in a New York federal court, he “photographed singer, songwriter and actress Adriana Grande,” who turned around and posted two of the photos on her Instagram account this summer to promote the release of her “Sweetener” album without his authorization.
Just a couple of months after it was filed, the case was settled out of court in mid-July.
MAY 2019 – Barbera v. CBS Interactive, Inc., 1:19-cv-04298 (SDNY)
Photographer Robert Barbera, who has been on a litigation spree as of late, filed a copyright infringement against CBS, alleging that the media giant infringed his rights in a photo of Justin Bieber by “reproducing and publicly displaying it” in an article documenting the “most liked Instagram pics” on March 13. According to Barbera, “CBS did not license the photograph from [him]” for its article, “nor did CBS have [his] permission or consent to publish the photograph on its website.”
APRIL 2019 – Barbera v. Versace USA, Inc., 1:19-cv-03563 (SDNY)
Versace is being sued over photos of Jennifer Lopez. The American arm of the famed Italian design house has been slapped with a copyright infringement lawsuit for posting two photos on its highly-followed Instagram account of the musician-slash- actress in head-to-toe Versace at an MTV Video Music Awards after party this summer without licensing the photos or otherwise seeking and receiving photographer Robert Barbera’s authorization to do so.
According to Barbera’s complaint, which was filed in a New York federal court in April, Versace “willfully, intentionally, and purposefully, in disregard of and indifference to [his] rights … infringed [his] copyright in the photographs by reproducing and publicly displaying [them] on [Instagram].” As it turns out, “Versace is not, and has never been, licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the photographs” of Lopez, a longtime friend of the brand, who made headlines after attending the Grammy Awards in February 2000 in a plunging green Versace silk chiffon dress.
MARCH 2019 – BackGrid USA, Inc. v. Fashion Nova, Inc., 2:19-cv-01476 (C.D.Cal.)
According to BackGrid’s complaint, which was filed in a California federal court in March, it is in the business of licensing its copyright-protected photos of well-known celebrities to other outlets in furtherance of deals that are worth “up to hundreds of thousands of dollars.” Despite using BackGrid’s images of Kourtney Kardashian, Blac Chyna, Amber Rose, and 21 Savage on its site, BackGrid asserts that Fashion Nova never licensed or received its authorization, and instead, opted to simply “appropriate [the copyrighted images] for itself.”
JANUARY 2019 – Xclusive-Lee, Inc., v. Jelena Noura “Gigi” Hadid, 1:19-cv-00520 (EDNY)
Supermodel Gigi Hadid was sued for a second time in federal court in Brooklyn, New York in January 2019. According to Xclusive-Lee’s complaint, Hadid “copied and posted” one of its photos of her to her Instagram “without license or permission from Xclusive,” prompting the photo agency to file – and ultimately, lose – a copyright infringement suit.
Hadid ultimately prevail when the court dismissed the case, finding that Xclusive-Lee had not registered the photo at issue before filing suit.
FEBRUARY 2018 – Odell Beckham Jr v. Splash News and Picture Agency, LLC and Miles Diggs, 2:18-cv-01001 (E.D. La.)
In a role reversal, football star Odell Beckham Jr., filed suit against photographer Miles Diggs and California-based Splash News & Picture Agency for allegedly attempting to "extort" him into paying $40,000 after he posted a photo of himself on his Instagram account. "The audacity of Splash News to demand payment from Beckham – the very person who provided value to the Photos – is shocking, reeks of bad faith, and emphasizes the utterly troll-ish behavior of Diggs and Splash," the complaint asserted.
Beckham alleged that Diggs sold or licensed the images to Splash, which then licensed them to a variety of gossip websites, including TMZ, and DailyMail.com, in exchange for a royalty fee. However, "The only reason that the photos have any value is because they depict Beckham," according to the complaint. "Yet, Beckham received no compensation from Diggs or Splash."
That case ultimately settled out of court in February 2019.
JANUARY 2018 – Splash News and Picture Agency, LLC, v. Jessica Simpson, et al, 2:17-cv-00591 (C.D.Cal.)
According to Splash News’ complaint, which was filed in federal court in California, Simpson “or someone acting on her behalf” took a copyright protected photo from the Daily Mail’s website and published it on Simpson’s social media accounts. While Splash News alleges that the Daily Mail obtained a limited license to publish the photo online in August, Simpson, herself, did not receive authorization to post the photo.
That case ultimately settled out of court in March 2018.
SEPTEMBER 2017 – Cepeda v. Jelena Noura “Gigi” Hadid and IMG Worldwide, Inc., 1:17-cv-00989 (E.D. Va.)
Gigi Hadid was slapped with a copyright infringement lawsuit after posting a photo of herself on her Instagram and Twitter accounts last summer. According to a the suit filed by photographer Peter Cepeda in the U.S. District Court for the Eastern District of Virginia, the famous model posted a photo of herself – which Cepeda took and in which he holds exclusive rights – amounting to an “act of infringement [that] was willful and intentional, in disregard of and with indifference to the rights of Cepeda.”
That case ultimately settled out of court in December 2017.
APRIL 2017 – Xposure Photos UK Ltd. v. Khloe Kardashian et al, 2:17-cv-03088 (C.D.Cal.)
Khloe Kardashian made headlines in April 2017 when she was sued by Xposure Photos for posting a photo of herself on her Instagram account last fall. According to its suit, Xposure claimed that the reality television star ran afoul of federal copyright law by posting a photo of herself “going for a meal at David Grutman’s Miami restaurant, Komodo” without licensing the photo from Xposure, the copyright holder.
Following mediation, that case settled in February 2018, with Kardashian later saying that she “had to pay a lot” in connection with the settlement.