Rihanna’s Fenty Corp. is being sued again for posting a paparazzi photo on Instagram to promote its wares. In a lawsuit filed last week, professional photographer Carlos Vila claims that he took a photo of model Irina Shayk on a Manhattan street this summer, clad in denim pieces from Fenty – the high-end fashion venture that Rihanna launched this year with luxury powerhouse LVMH Moët Hennessy Louis Vuitton – only to have the brand use the image (without his authorization) to promote its offerings on Instagram.
According to Vila’s complaint, which was filed in a New York federal court on December 24 by serial copyright infringement case-filer Richard Liebowitz, Fenty “reproduc[ed] and publicly display[ed] the photograph [at issue] on [its] Instagram page” earlier this year even though it is “not, and has never been, licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the photo.”
By temporarily posting the copyright-protected photo to the social media platform by way of its “Stories” feature, which enables users to post photo that are viewable only during a 24 hour window, without paying to license it and/or without receiving Vila’s “permission or consent to publish the photo,” Fenty has “willfully, intentionally, and purposefully” run afoul of federal copyright law.
As a result, Vila asserts that he is entitled to “either: a) [the] actual damages [that he suffered as a result of Fenty’s alleged infringement] and [any] profits, gains or advantages of any kind attributable to [Fenty’s] infringement of [his] photograph; or b) alternatively, statutory damages of up to $150,000 per copyrighted work infringed.”
The lawsuit at hand closely mirrors one that was filed against Fenty in October after the barely 1-year old brand posted a photo of model Gigi Hadid wearing the same corseted dark denim top from its debut collection as Shayk. Fenty Corp. settled that suit within months of it being filed, which has proven a common outcome in most of these cases.
While there are some notable exceptions – such as when Gigi Hadid fought back in one of the infringement suits filed against her for posting a paparazzi photo of herself without licensing it or when 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 account – most of the defendants in such cases are “offering to [pay from] $10,000 to $20,000 to settle,” Neel Chatterjee of Goodwin Proctor told the BBC early this year.
image via complaint
Chatterjee says that $10,000 to $20,000 “might seem like a lot of money” to make a copyright infringement lawsuit go away, but he also notes that “in the context of litigation costs, it’s really not that much.” At the same time, though, thousands of dollars is a large sum in the sense that the cost of licensing a photo from paparazzi photo agencies, such as Splash News or Xposure, which are behind many of the growing number of paparazzi v. celebrity lawsuits, does not cost that much. Instead, the Hollywood Reporter revealed that “paparazzi pics can easily be licensed for a couple of hundred bucks a pop,” making a $10,000 or more payment a bit more expensive than meets the eye.
To a large extent, though, settling is the cheaper than retaining legal counsel to fight the case. “It’s going to take someone like a Kardashian who has tons of money who sees other commercial benefits by litigating these questions,” Chatterjee says. “It very well may take someone like that to actually fight this stuff.”
Based on Fenty Corp.’s recently settled case, it likely will not opt to fight this one … even if it does have the monetary muscle to do so. Instead, it appears that Gigi Hadid just might be the one to reform copyright law, as counsel for the model raised some interesting co-authorship (and thus, co-ownership) defenses in the case filed against her in January 2019. Hadid’s legal team argued that, among other things, the model was the one responsible for the “creative elements” in the photo at issue – namely, her “pose, expression, or clothing” – (not the photographer) and thus, she should be granted rights in the image, which would enable her to sidestep infringement liability.
That case was ultimately dropped on procedural grounds before any substantive decisions could be made by the court, as the plaintiff did not have a copyright registration for the photo, which is a pre-requisite to filing an infringement action. Nonetheless, a new infringement suit is currently pending against Hadid, and another has since been filed against her model sister Bella.
UPDATED (January 1, 2020): The most recently-filed copyright infringement case against Hadid has settled.
*The case is Vila v. Fenty Corp., 1:19-cv-11790 (SDNY).
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