Image: complaint

Kim Kardashian and her shapewear venture SKIMS are on the receiving end of a new copyright infringement lawsuit. According to the complaint that Saeed Bolden filed in a New York federal court on Wednesday, Kardashian is on the hook for her “unauthorized reproduction and public display of a copyrighted photograph of [herself] and [husband] Kayne West,” which was taken by and is “owned by Bolden,” a New York-based professional photographer, and registered with the U.S. Copyright Office in his name.

Bolden claims in his newly-filed complaint that he captured the photo of Kardashian in June 2018 – at West’s listening party for Nas’ album “Nasir” in New York – and while he licensed the image to certain media outlets shortly thereafter, neither Kardashian nor SKIMS were “licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the photograph.” Nonetheless, that is precisely what the mega-star did, according to Bolden. (It is unclear why, exactly, SKIMS – which did not post the image and in fact, was not founded until 2019 – is named as a defendant).

The photographer claims that Kardashian posted the image to her Instagram account a few months later in October 2018, and thus, is running afoul of federal copyright law, which gives the creator of an original work, such as a photograph, the exclusive right to display that work, reproduce it, sell it, etc. Save for certain instances (such as where there is co-authorship, for example), those rights do not extend to the subject of a photo regardless of who the subject is and whether he/she explicitly consented to the taking of photo.

With that in mind, by sharing Bolden’s copyright-protected image on her Instagram account without his authorization and without otherwise licensing it from the relevant photo agency, Kardashian engaged in “willful, intentional, and purposeful [copyright infringement], in disregard of and indifference to [Bolden’s] rights.” As such, the photographer is seeking monetary damages, including “the profits, gains or advantages of any kind attributable to [Kardashian’s] infringement of [his] photograph.”

The lawsuit comes more than two years after Kardashian’s sister Khloe was named in a copyright infringement lawsuit for posting a photo of herself on her Instagram account. According to the since-settled lawsuit, which was filed by Xposure Photos in a California federal court, the reality television star violated 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.

Over the past several years, court dockets in New York and Los Angeles have become increasingly filled with nearly uniform copyright infringement cases filed on behalf of paparazzi photographers and photo agency plaintiffs by the same small handful of lawyers, who have been likened to “copyright trolls.”

Despite arguments that could be made about the right of publicity elements at play (and that at least a couple of famous figures have made: Gigi Hadid fought back in one of the infringement suits filed against her and 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), to a large extent, settling these cases quickly and quietly has been the norm, as that is a lot  cheaper than retaining legal counsel to fight the case until the end.

However, as Neel Chatterjee of Goodwin Proctor told the BBC last year that if “someone like a Kardashian, who has tons of money sees other commercial benefits [to] litigating these questions,” a fight very well may be upon us. And that is precisely what is needed, New York University Law professor Christopher Sprigman, who specializes in copyright law, told TFL in 2019.

In light of suggestions for some sweeping reform to the Copyright Act to bring it up to speed with the rise of social media, Sprigman says, “What we really need is for a good defense lawyer to argue the equities in these cases – namely, that the photographer is figuratively biting the hand that feeds him – and we need a good judge to find, on that basis, that minimal statutory damages are due [assuming the photo is registered], and that the plaintiff should not recover attorney’s fees.”

Something like that, he says, “would put an end to these suits right quick, considering that actual damages in these cases tend to be scant and difficult to prove.”

UPDATED (June 31, 2020): On the heels of Bolden filing a Notice of Settlement and Motion to Adjourn Initial Conference on July 19, his counsel has filed a notice of voluntary dismissal, bringing the case to a close.

*The case is Saeed Bolden v. SKIMS BODY, INC. and KIM KARDASHIAN, 2:20-cv-00365 (EDNY).