On the heels of Paper magazine’s parent company initiating a legal battle with a photo tech company and a handful of the biggest paparazzi photo agencies, in which it accused them of holding its Instagram account hostage for nearly $5 million and running afoul of federal copyright law and the Racketeer Influenced and Corrupt Organizations Act in the process, the three photo agencies at issue – Backgrid USA, Splash News and Picture Agency, and Xposure Photo Agency – have responded with a lawsuit of their own.
According to their newly-filed copyright infringement complaint, Backgrid USA, Splash News and Picture Agency, and Xposure Photo Agency claim that “despite being a sophisticated publisher of content,” Paper’s parent company, EntTech is “a repeat and notorious infringer of copyright” that “regularly relie[s] on third party content, including the content of [Backgrid, Splash News, and Xposure] … without license or [their] permission.”
In fact, the plaintiffs – which describe themselves as “Hollywood’s largest celebrity-photograph agencies” – allege that EntTech has been sued “a number of times for copyright infringement, and, as such, is aware of the basic strictures of copyright law and the need to license the content from which it handsomely profits.” Despite such knowledge, Backgrid, Splash News, and Xposure assert that EntTech has infringed an array of their copyright-protected (and registered) images – including ones of Kendall Jenner, Bella Hadid, Selena Gomez, Justin Bieber, Harry Styles, Rihanna, and Kanye West, among others – in furtherance of its quest “to attract traffic to its social media accounts.”
To be exact, Backgrid, Splash News, and Xposure claim that EntTech “has violated federal [copyright] law by willfully infringing at least 28 timely registered photographs … [by] reproducing, distributing, displaying, and creating unauthorized derivative works of [their] photographs on its social media accounts without consent or license.” (Copyright law grants creators of original works – such as photographers – a number of exclusive rights, including the right to reproduce, distribute, and display their works, and to create derivative works based on their original works, while also prohibiting others’ unauthorized use of such works).
In posting the imagery at issue, which it allegedly did not license from the photo agency plaintiffs, EntTech “has driven significant traffic” to Paper’s website and social media accounts, and “increased its revenues through the presence of the sought-after and searched-for photographs,” and gained “substantial ill-gotten commercial advantage and increased brand awareness as a direct consequence of the infringements,” the plaintiffs argue.
Against this background, Backgrid, Splash News, and Xposure claim that they “acted to minimize the ongoing harm caused by [EntTech’s enduring] infringements,” namely by having Digital Millennium Copyright Act (“DMCA”) Takedown Notices sent to Instagram in connection with EntTech’s heavily-followed account in early July. In addition to removing the images, the plaintiffs state that “Instagram took the additional step of terminating or suspending EntTech’s Paper magazine account, presumably because Paper violated Instagram’s repeat infringer policy.”
Shortly after the plaintiffs’ sent the DMCA notices, which are part of a formal process that allows copyright holders (or their agents) to request that website owners/operators, such as Instagram, remove copyright infringing materials, EntTech filed DMCA counter-notifications in which its lawyer stated that the company had “a good faith belief that the material in question was removed or disabled as a result of mistake or misidentification.”
In reality, the plaintiffs assert that no such good faith belief exists, as “the infringements were removed because they were unlawful copies, not because of a mistake or misidentification.” They claim that in the midst of such back-and-forth over the Paper magazine Instagram account, EntTech removed the same imagery from Twitter, thereby, “tacitly acknowledging that [it] indeed engaged in infringement and wanting to avoid the suspension of its Twitter account.”
Ultimately, “Unhappy that its Instagram account had been flagged as a ‘repeat infringer’ by Instagram, EntTech filed suit against the photo agencies for among other things, RICO and tortious interference with protective economic advantage,” the plaintiffs claim. At the heart of EntTech’s lawsuit is its argument that Okularity – the photo tech company that the plaintiffs use to identify infringing uses of its imagery and send DMCA notices – ran afoul of the law by automatically generating DMCA takedown notices without considering whether Paper’s use of the images falls within the bounds of fair use.
“Of course, all of the photo agencies’ actions were lawful and prescribed by the DMCA,” Backgrid, Splash News, and Xposure assert, setting forth claims of copyright infringement, misrepresentation (in connection with EntTech “knowingly and materially misrepresented that the photos were removed or disabled as a result of a mistake or misidentification”), and declaratory relief. They are seeking preliminary and permanent injunctive relief to enjoin EntTech from “further such violations,” as well as monetary damages.
A rep for EntTech was not immediately available for comment.
UPDATED (August 13, 2020): According to a rep for Paper, the magazine has launched a new Instagram account in the midst of the parties’ legal battle.
*The case is Backgrid USA, Inc., et al., v. EntTech Media Group LLC, 2:20-cv-06803 (C.D.Cal.).