Angela Ma was one of the individuals eagerly crowded outside of the Balenciaga store in Soho, New York in September 2019, hoping to catch a glimpse of Kendall Jenner, who was shopping inside. When Jenner emerged from the Paris-based brand’s Mercer Street outpost, she smiled, gave a quick wave to the group, and strutted several yards down the sidewalk to a waiting car with her garment bag-toting bodyguard. Ma caught the whole glamorous scene on video, and posted it to her Instagram account.
New York-based Ma was not the only one who posted the video online, though. Two days later, Jenner, herself, posted the very same video to her heavily-followed Instagram account, along with the caption, “bye nyc ????”. The problem? According to the lawsuit that Ma filed this week in a federal court in Los Angeles, Jenner “did not have [her] permission or consent to publish the video,” thereby, giving rise to an action for copyright infringement.
Pointing to the federally registered copyright that she now maintains, for which she filed an application on September 15, 2019 (three days after Jenner posted the video to her Instagram account), Ma alleges in her complaint that the 24-year old reality star-slash-supermodel “did not license the video from [her]” or get her authorization to use the video before posting it online. And now, Ma is seeking legal recourse, arguing that Jenner’s “acts of infringement … were willful, intentional, and purposeful, in disregard of and indifference to [her] rights” as the copyright holder, including her exclusive right to reproduce and to display the video (regardless of the fact that Jenner is the primary subject of the video because copyright law does not grant rights based on whether an individual appears in a work).
By posting the video to her Instagram, Ma asserts that Jenner is the “direct and proximate cause of the infringement,” and thus, should be forced to pay either the sum of Ma’s “actual damages and [Jenner’s] profits, gains or advantages of any kind attributable to [her] infringement of [Ma’s] video” or … alternatively, statutory damages up to $150,000.
The fact that Ma filed to register her video with the Copyright Office after the alleged infringement took place should not have an impact on the damages available to her. “For a work that is previously unpublished, a copyright owner can get statutory damages and attorney’s fees so long as she registers the work within 3 months following first publication, even if infringement commences prior to that date,” according to NYU School of Law copyright professor Christopher Sprigman.
With that in mind, if Ma can prove that she suffered economic harm as a result of Jenner posting the video, such as as lost sales, lost licensing revenue, or any other provable financial loss directly attributable to the infringement, she can recoup that; the same holds true if Jenner earned any money as a result of the alleged infringement. Both would likely be difficult to prove here, as chances are, Jenner did not earn anything tangible as a result of the post, and it is unclear what damages Ma, who does not appear to be a professional photographer in the market of licensing photos, could have experienced as a result of the model posting the video.
As such, statutory damages – which are explicitly set out in title 17 of the United States Code as a remedy for copyright infringement, and permit a court to award damages from $750 up to $30,000, per work and increase the amount of damages up to $150,000 if willful infringement is found – are an attractive alternative.
However, should Ma be entitled to statutory damages of $150,000 potentially without being able to prove that she was actually damages by Jenner’s posting of the video? That is “the real problem here,” Sprigman says, reflecting on the availability of such sizable statutory damages awards. “Why on earth should Kendall Jenner owe this woman $150,000? That’s just an attempted shake-down,” or to put it another way, it is “bad behavior by the plaintiff which the statutory damages rule is encouraging.”
Hardly the only case in which a copyright holder has sought an eye-watering sum in connection with the unauthorized use of his/her imagery by a famous figure (or fashion brand) on social media, this is merely the latest in a lengthy string of very similar lawsuits centering on the use of others’ copyright-protected works.
As these cases continue to fill the dockets of federal courts, primarily in New York and California, prompting celebrities and some courts, alike, to call foul, Sprigman says “the easiest way out of this would be to rule for the plaintiff, and then award as little as possible — minimum statutory damages ($750) if the plaintiff ultimately elects statutory damages, or actual damages, which are bound to be near zero, if the plaintiff elects that.”
And more than that, the court would need to “refuse to award attorney’s fees, as [it] has discretion to do.” That would “stop these suits in their tracks,” he says, “because they cost a lot to litigate and the plaintiff would be in the red at the end.”
UPDATED (October 7, 2020): In a new filing, counsel for Kendall Jenner alerted the court that the parties have settled the matter out of court. While the terms of the parties’ agreement is confidential, it likely includes payment in the form of a retroactive license fee paid by Jenner to Ma for her use of the video, which remains on Jenner’s Instagram.
*The case is Angela Ma v. Kendall Jenner, Inc. and Kendall Jenner, 2:20-cv-03011 (C.D.Cal.).