Model Joan Smalls has landed in the middle of an informal copyright battle on Instagram after sharing a photo of herself with her 1.1 million followers without crediting the student who took it. (This is not unlike that time Karlie Kloss reportedly "stole" the photo of a photographer backstage at Oscar de la Renta last year.) Turns out, Claire Roche, a Boston-based photography student snapped a photo of Smalls and fellow model Doutzen Kroes (pictured below) at a New York Fashion Week party, which both Smalls and Kroes subsequently posted to their own Instagram accounts. According to the timeline of drama on Smalls’s Instagram feed, she received a private message from Roche who allegedly threatened to take legal action if Smalls did not either credit the photo or remove it.
As a result of Roche's message, Smalls deleted the photo and in its place posted one (which has also since been deleted) with an illustration eluding to a middle finger and the following caption: “Sometimes it’s just too early to deal! Why do people feel you owe them? People get so bent out of shape over small things. People should learn how to develop a rapport.”
So, what exactly is going on here … legally? Well, Roche very likely has copyright protection in her photo (if it is, in fact, original) with or without Smalls’s consent and regardless of whether Roche posted it in a public forum, such as Instagram. As the photographer, she is the rights holder. While Smalls may be able to pursue her own cause of action (hypothetically) for a violation of her right to publicity, namely, for Roche’s use of her “name, image [or] likeness,” this is not necessarily a home run for Smalls because in New York, this cause of action is largely based on use that is for the purpose of advertising or trade.
For a more thorough legal analysis, read on … As you may known, the right of publicity is a personal property interest that gives its holder the right to own, protect, and profit from his name, likeness, or identity or to control the commercial use of his identity. While the right of publicity technically affords everyone the right to assign or prevent the use of his identity for commercial purposes, such as endorsing a brand's goods or services, or preventing unauthorized broadcasts of a person's performance, only celebrities (including supermodels like Smalls) generally posses sufficient commercial value in their identity to justify litigation.
It is also worth noting that unlike intellectual property laws, which are governed by federal law, the right of publicity is a state law doctrine that varies greatly among each individual state. In New York, the right of publicity is written into the state Civil Rights statute, which provides that “any person whose name, portrait, picture or voice is used within this state for advertising purposes or purposes of trade without the written consent” of the subject may be sued for injunctive and monetary relief. Significantly, this right extends to “any person” in New York, not merely to celebrities or people in the public eye.
So, the issue here would be whether Roche is using the photo she took of Smalls in a commercial way, such as in her portfolio. As of now, that doesn't seem to be the case, and chances are, this feud will stay on Instagram.