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Image: Stuart Weitzman

Gigi Hadid wants the lawsuit filed against her for posting a photo of herself on her highly-followed Instagram account tossed out. In an April 1 letter to Judge Chen of the U.S. District Court for the Eastern District of New York, Hadid’s counsel requested a conference ahead of their “anticipated” filing of a motion to dismiss the case, which they call a “misuse of the Copyright Act” and “nothing more than an effort to extract money from Ms. Hadid, presumably based on a calculation that, even in a meritless case like this, the costs of litigation could cause Ms. Hadid to pay out a relatively modest settlement.”

The letter asserts that Xclusive-Lee, Inc.’s January 2019 complaint should be dismissed for a number of reasons, including that the plaintiff has failed to show that it maintains a copyright registration for the photo at issue, which the Supreme Court decided, after this case was filed, is a pre-requisite to bringing a copyright infringement action.

Beyond that, Hadid’s counsel claims that the supermodel’s reposting of the photo amounts not to copyright infringement but is, instead, fair use. In furtherance of this claim, Hadid’s counsel looks to the four fair use factors – 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken, and 4) the effect of the use upon the potential market – and alleges that they all weigh in Hadid’s favor, and thus, the model should be shielded from copyright infringement liability.

In particular, Hadid’s counsel asserts in some at-times creative points that: 1) “Hadid merely reposted the photo … and did not market or sell it,” thereby, weighing in favor of fair use. It is worth noting that an argument could potentially be made here (by Xclusive-Lee) that it is a well-established principle in the fashion industry that a model’s ability to book major ad campaigns – and land lucrative sponsored post opportunities – depends in large part on her social media presence, making it so that in essence, all social media posts are, to a certain extent, commercial in nature.

In terms of the second point, Hadid’s attorney argues that “the photo [is] not a studio composition but rather a quick ‘shot in a public setting’ [and] there is no allegation that the photographer ‘attempted to convey ideas, emotions, or in an way influence [the subject’s] pose, expression or clothing.”

The interesting element here – aside from the implication that in order for a photo to be protectable by copyright law (which maintains a notoriously low for creativity and originality, and thus, protectability) it should be “a studio composition” – is the assertion that by “posing” for the photo and “smiling,” Hadid was the one who actually created the protectable elements of the photo.

Third point: Hadid did not use the entire photo but instead, “reposted only a cropped portion” of it, one that “focused more on the elements she contributed, and less on the elements that she photographer arguably did,” such as the framing. (Up for debate is whether slightly cropping a photo but still maintaining the key elements is a persuasive argument in connection with this fair use factor).

And finally, “The complaint does not allege that Ms. Hadid’s use deprived Xclusive of any, much less ‘significant’ revenue.” Instead, she “merely reposted an already-published, cropped, and less-than-full-resolution copy of the photo to her personal Instagram page.”

The letter goes on the claim that “it is an unfortunate reality of Ms. Hadid’s day-to-day life that paparazzi make a living by exploiting her image and selling it for profit,” and that this lawsuit demonstrates a particularly egregious element of that, in which the plaintiff is seeking “monetary damages from Ms. Hadid based on allegations that she found a copy of a photograph of herself online and reposted it to her personal Instagram account.”

This lawsuit comes on the heels of Hadid being sued in September 2018 for posting another’s photo on her Instagram account without their authorization. That case quietly settled out of court.

*The case is XCLUSIVE-LEE, INC., v. JELENA NOURA “GIGI” HADID, 1:19-cv-00520 (EDNY).