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Image: via Instagram

Gigi Hadid’s response to a pending copyright lawsuit “tests the limits of cynicism because Hadid has gone out of her way to criticize photographers like the author of the photograph [at issue] as a necessary evil of the publicity she receives,” Xclusive-Lee, Inc. asserts in its opposition to the model’s recently-filed motion to dismiss. The supermodel, the plaintiff photo agency argues, “wants to have it both ways. She derides the individuals who capture photographs of her, [and] then turns around and appropriates their work” by posting their images on her highly-followed Instagram account.

According to Xclusive’s 13-page filing, which comes less than a week after Hadid’s counsel filed a lengthy motion seeking to have the case tossed out of court, Hadid has failed to show that her use of Xclusive’s paparazzi-captured image of herself is fair use, and as such, the case should proceed.

In an attempt to poke holes in Hadid’s argument that her posting of its image on her Instagram account without receiving permission from the copyright holder or paying a licensing fee amounts not to infringement but to fair use, Xclusive puts forth two additional fair use factors for the court to consider:(1) “whether the new work [i.e., the allegedly infringing work] is transformative”; and (2) “the extent to which the use [of the allegedly infringing work] serves a commercial purpose.”

Xclusive claims that 24-year old Hadid – who is “estimated to be [one of] the world’s highest paid models with a net worth of $20 million dollars” – fails to meet the first factor, as her use of Xclusive’s photo “is not even close to being transformative,” or in other words, Hadid has not – and does not claim to have – “made some critical use of, or change to, the original work to qualify as transformative.”

Instead, the photo “is a well-executed, candid, street photograph of Ms. Hadid, [which the model] posted in its original, barely-cropped form for the purpose of depicting exactly that.”

As for the second factor, which centers on the potential commercial purpose of Hadid’s use of the image, Xclusive asserts that this factor also weighs in its favor, in large part because commercial purpose is not limited to direct profits earned, such as those “generated by selling an infringing product,” which Hadid’s counsel correctly notes that she did not do here, but also includes indirect profits, such as “revenue earned from operations enhanced by the infringement.”

The latter element is the important one, per Xclusive, which argues that Hadid “maintains and supports her brand by keeping herself in the news by chronicling her exploits on social media, including Instagram.” To be exact, she “regularly posts photographs of herself to her Instagram account that are not her intellectual property and for which she has not properly received permission nor license from the copyright holder … which contribute to her online presence, popularity, and most importantly her marketability.”

This should be considered, the company argues, in answering “the question [of] whether Hadid gained a commercial advantage, either directly or indirectly, as a consequence of using the photograph without paying the customary licensing fee.”

Xclusive does not stop there, though. It goes on to shoot down Hadid’s argument that the photo should be “considered a factual work, not a creative one,” making Hadid’s unauthorized use of it legally above-board. Per Xclusive, the photo at issue is “not just a mere snapshot of an individual on a street corner taken on a cellphone; the photograph is a highly creative work, involving a number of creative choices including timing, lighting, angle, composition, and others.” If the court were to side with Hadid in this argument, that would mean that “any photograph of a real-world location or individual to be a factual, thinly-protected work,” it argues.  

More than that, Xclusive takes issue with Hadid’s argument that by stopping and smiling for the photo, and selecting her outfit, which is depicted in the photo, she “contributed many of the [creative] elements” in the photo, and should be considered an “author” of the photo, which would give her rights in it.

According to Xclusive, the assertion that Hadid is a co-author in the phot “just because she noticed the photographer and smiled at the moment the photographer chose to snap the shutter is preposterous.” The model is “as much a joint copyright holder in the photograph as the subject of a biography is joint copyright holder to the words used by the author to describe her life.”

Still yet, Xclusive takes on the argument that by “stopping to permit the photographer to take her picture and, by posing, [thereby,] contributing to the photograph’s protectable elements,” Hadid earned herself an implied license to use the photo without permission from Xclusive or the need to pay a licensing fee. Xclusive calls such an arrangement the result of “Hadid’s imaginary world of make-believe contracts.” 

“If Hadid’s approach to the issue of an implied license were adopted,” Xclusive asserts, “the copyrights of the majority of the world’s authors would be obliterated because the only requirement for an implied license would be for the subject of a work of original art would be to claim (not very convincingly) that she winked, smiled, nodded, or otherwise communicated her acceptance to the author.”

Xclusive goes on to claim that “Hadid’s legal approach is alarming for its blatant attempt to rewrite established legal doctrine.”

With all of this in mind, the plaintiff claims that Hadid’s motion to dismiss should be denied, and the case should proceed.

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