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Image: Stuart Weitzman

Gigi Hadid wants the case filed against her for posting a photo of herself on Instagram tossed out of court. Echoing a seemingly unpersuasive April 1 letter to Judge Chen of the U.S. District Court for the Eastern District of New York, Hadid’s counsel filed a 20-page motion to dismiss on Wednesday, arguing that the case initiated by Xclusive-Lee, Inc. early this year “does not satisfy even the most basic requirements of a copyright claim, failing to allege both registration of the photograph and the ownership necessary to bring this action,” and also fails to identify any damages that it suffered as a “result of the supermodel’s alleged infringement.

In addition to claiming that plaintiff Xclusive failed to sufficiently show that it has rights in the photo, in part because Xclusive did not take the photograph at issue, Hadid’s counsel claims that the model’s reposting of a paparazzi photograph of herself on her Instagram page amounts to fair use – meaning that she “used the copyrighted material in a reasonable manner without [the author’s] consent” – therefore, is not legally actionable.

In a discussion about the four factors relied upon to determine whether the use of a copyright-protected photo (or other creation) amounts to fair use, as opposed to copyright infringement, Hadid’s counsel asserts that the facts are squarely on her side.

For example, “Ms. Hadid merely reposted the photograph to her Instagram page and made no effort to commercially exploit it,” making her use of the photo “different than the photographer’s purpose in taking the photograph, which was to commercially exploit Ms. Hadid’s popularity.” This difference, per Hadid’s counsel, paired with the lack of allegations that “Hadid capture[d] significant revenues as a direct consequence of copying the original work,” means that the first factor – “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” – is in Hadid’s favor.

This is an interesting claim given that Hadid’s agent IMG Models’ Luiz Mattos told Vogue Business in April that Instagram, while not always directly monetizable, is an integral part of a model’s brand. Vogue’s Phoebe Lovatt noted, “Models should use social media to build their brands,” while Luiz asserted, “‘These days, models’ jobs don’t end when they leave the studio or the runway. They need to have a message. Your job is not only to be in front of the camera. When you finish shooting a campaign and you’re posting on social, you need to have something to say.”

The second factor – which looks at “the nature of the copyrighted work” – “strongly” weighs in Hadid’s favor, according to the motion to dismiss, for two reasons: 1) Such a “quick shot in a public setting,” where there is “no allegation that the photographer ‘attempted to convey ideas, emotions, or in any way influence [the subject’s] pose, expression, or clothing,’” is, per Hadid’s counsel “considered a factual work, not a creative one, thus favoring a determination of fair use.” 2) The aforementioned creative elements in the photo – namely, “[the subject’s] pose, expression, or clothing – were created by Hadid.

In short: because “Ms. Hadid posed for the camera and thus, herself contributed many of the [creative] elements” in the photo, she should be considered an “author” of the photo and have rights in it. 

The final two factors – which center on “the amount and substantiality of the portion taken” (Hadid cropped the original image and thus, used only about “50 percent” of the original), and “the effect of the use upon the potential market,” in connection with which Hadid’s counsel says she has not “deprived Xclusive of any, much less ‘significant,’ revenue” – similarly weight in Hadid’s favor, per the motion.

In terms of the “other relevant considerations” that the court should consider, those fall in Hadid’s favor, as well, her counsel asserts, noting that “the photograph here was only possible because of the cooperation of Ms. Hadid in the photograph’s creation.” With that in mind, the motion continues, “Where creative features [of a photo] come not from the photographer but rather from the subject, holding the subject liable for infringement does not nothing to ‘foster’ what the Copyright Act values,” and instead, does the opposite.

In case the fair use argument is not enough to shield Hadid from copyright liability, her counsel claims that the model had an implied license “permitting her to repost the photograph on Instagram,” a license born from “object conduct that would permit a reasonable person to conclude that an agreement had been reached.” The conduct in the case at hand? Hadid’s “stopping to permit the photographer to take her picture and, by posing, [thereby,] contributing to the photograph’s protectable elements.”

Based on the fact that “the photographer elected to take a photograph, which was indisputably made more valuable through Ms. Hadid’s participation in its creation,” Hadid’s counsel claims, “a license can, and should, be implied permitting Ms. Hadid to use the photograph—at least in ways that do not interfere with the photographer’s ability to profit.”

In light of such “fundamental defects” in the plaintiff’s claims, Hadid claims that Xclusive fails to adequately make its case for copyright infringement, and thus, the case should be dismissed. Xclsuive will likely now submit an opposition to the motion to dismiss, arguing why it thinks the case – which was filed in federal court in Brooklyn, New York, in January claims that Hadid “copied and posted” to her Instagram account a photo belonging to XCLUSIVE-LEE, INC., “without license or permission from Xclusive” – should remain in court.

The case comes amidst a larger string of paparazzi photo cases filed against celebrities, which raises questions about the intersection of copyright law and right of publicity protections.

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