Emily Ratajkowski’s “forever mood” is getting her sued. The model-splash-actress has been hit with a copyright infringement lawsuit after posting a photo of herself on her Instagram account, making her the latest celebrity to be the target in a growing trend of similar cases that has landed stars – ranging from Justin Bieber and Ariana Grande to Jennifer Lopez and Victoria Beckham – and fashion brands, alike, on the receiving end of infringement suits.
According to a complaint filed in a New York federal court on Wednesday, photographer Robert O’Neil claims that Ratajkowski and her corporate entity Emrata Holdings LLC ran afoul of federal copyright law when the 28-year old posted one of his photos to her Instagram story. O’Neil asserts that he is the “author of the photograph, and has at all times been the sole owner of all right, title and interest in and to the photograph, including the copyright thereto,” making Ratajkowski’s Instagram post a violation of his exclusive rights as the copyright holder, including his exclusive right to publically display or authorize others to display the photo.
While O’Neil appears to have licensed the photo to the Daily Mail (in exchange for a fee), he claims that Ratajkowski “did not license the photo from [him]” before posting it on Instagram, and did not have his “permission or consent to publish the photo.” As a result, the photographer is seeking “actual damages and profits, gains or advantages of any kind attributable to [Ratajkowski’s] infringement of the photo; or alternatively, statutory damages of up to $150,000 per copyrighted work infringed.”
As for the photo at issue, one of Ratajkowski obscuring her face with a bouquet of flowers while on the street in New York, it is worth noting that it does not matter – from a copyright perspective – that Ratajkowski is in the photo and that it may have been taken without her authorization.
Regardless of who the subject of the photo is and whether or not they consented to having their photo taken, once an at least minimally original/creative photo is taken, copyright protection exists and the holder of a copyright – which in the case of photos is usually the photographer (unless he/she assigns that right to another party, such as a photo agency) – has the exclusive right to reproduce, distribute, perform, display, and license the copyrighted work (and prevent others from doing so) for his entire life and for 70 years after his/her death.
Also recently added to the long list of celebrities and brands being hit with copyright infringement lawsuits: early blogger Rumi Neely’s company Are You Am I, which allegedly posted a photo of Kaia Gerber on its Instagram account without authorization from the copyright-holding photographer, and womenswear brand Hesperios, which is on the hook for posting a photo of Bella Hadid wearing one of its top/skirt sets. Just over a month after photographer Robert Barbara filed suit against Mode PR for posting a photo of Bella Hadid wearing a top and skirt made/sold by its client Hesperios, a different photographer is suing the womenswear brand for posting a separate but similar photo of Hadid.
*The case is O’Neil v. Ratajkowski et al, 1:19-cv-09769 (S.D.N.Y.).