With the rise in social media usage over the past two decades or so and the decline in conventional advertising formats has come a surge in ad efforts on social media platforms. This push to meet consumers where they are has meant that the jobs of influential figures – from fashion industry influencers to Hollywood celebrities – have expanded to include building and maintaining sizable social media followings in order to leverage those followings for big-money advertising partnerships. IMG Models’ Luiz Mattos, the agent behind the likes of supermodels Gigi and Bella Hadid, and actress Priyanka Chopra, put it well when he said, “These days, models’ jobs don’t end when they leave the studio or the runway,” and absolutely extends to “posting on social [media].”

One of the glaring side effects of such increased attention to social media – paired with a handful of notably aggressive lawyers – is the growing number of copyright infringement lawsuits that are being filed against individuals and brands over their unauthorized use of others’ images either of themselves, in the case celebrities and models, or of others in their wares when it comes to brands. Regardless of who appears in a photo (as copyright law does not award rights based on the subject of a photo, although at least some, such as Gigi Hadid, have taken to arguing that joint copyright rights should exist in some cases), the individual(s) behind the creation of a photo, almost exclusively paparazzi photographers (or their employers) in these instances, are the copyright holders, and as a result, any use of images by individuals other than the copyright holder gives rise to copyright infringement claims. 

With the foregoing in mind, here is a non-exhaustive (running) look at some of the recently-filed paparazzi v. celebrity and paparazzi v. brand cases …

NOVEMBER 2022 Claudia Fiorella Occhipinti v. Paris Hilton, 2:22-cv-08688 (C.D.Cal.)

Paris Hilton and two of the entities she controls Paris Hilton Entertainment, Inc. and 11:11: Media, LLC are being sued for copyright infringement for allegedly co-opting photos that were licensed for use for a Paris Hilton fragrance project and using them across many additional projects without photographer Claudia Occhipinti’s authorization. “In 2019, Ms. Occhipinti was engaged to shoot photographs of Paris Hilton for the sole purpose of promotion of Ms. Hilton’s ‘Electrify’ fragrance in certain types of media, limited to packaging, in store advertising, conventions or trade shows, and internet web advertising related to the fragrance. No other uses were permitted or requested, nor was sub-licensing permitted,” Occhipinti asserts.

Specifically, Occhipinti asserts that the defendants used the photos to “promote various different brands owned by Ms. Hilton, outside the scope of the agreed upon license, as well as to promote ‘Electrify’ in channels outside the scope of the permitted Uses.” She points to 15 Instagram posts from Hilton and/or Hilton’s brands, which use the photos to promote Paris Hilton merch, LuMee iPhone cases, Hilton’s “This is Paris” series, and various DJ sets, as well as a bus ad for the Electrify fragrance.

Setting out claims of copyright infringement, false designation of origin, unfair competition, and unjust enrichment, and seeking injunctive relief and damages, Occhipinti claims that “Ms. Hilton’s actions have deprived [her] of revenue and have caused [her] significant monetary harm.”

OCTOBER 2021 – Eva’s Photography, Inc. v. Inamorata Swim LLC, 2:21-cv-08136 (C.D.Cal.)

In the latest in a string of lawsuits being filed over the allegedly unauthorized posting of photos of Emily Ratajkowski by Emily Ratajkowski, Eva’s Photography has filed suit against Ratajkowski’s brand Inamorata Swim on the heels of the model-slash-actress posting a since-deleted photo of herself on her personal Instagram account in May. (The photo was subsequently shared by JW PEI, the brand that made the purse that Ratajkowski is toting in the photo; JW PEI is not named as a defendant in the complaint.)

According to Eva’s Photography’s complaint, Ratajkowski “engaged in this misconduct knowingly and in violation of the United States copyright laws.”

OCTOBER 2021 – Backgrid USA v. Scott Disick, 2:21-cv-07887 (C.D.Cal.)

Scott Disick of Keeping Up with the Kardashians fame is being sued for posting not one paparazzi photo to his Instagram account without licensing the photo or otherwise receiving authorization to use it, but for posting eight unauthorized photos to his heavily followed Instagram account @letthelordbewithyou dating back to 2016. According to Backgrid’s newly-filed complaint, in at least one of the Instagram posts featuring the copyright-protected imagery, Disick “included text that promoted [his] fashion apparel brand, Talentless,” namely by way of a caption that read, “Looking good in the @talentless Vote sweatshirt.”

Addressing the harm caused by Disick’s alleged infringements, Backgrid asserts that his use of the photos “devalued the photographs and harmed BackGrid because they were re-posted and copied by others, including by BackGrid customers who would otherwise license the Photographs from BackGrid. For example, BackGrid’s customer The Daily Mail reposted Mr. Disick’s Instagram post that included [a photo of Disick in front of Nobu in 2018].” Additionally, Backgrid claims that Disick’s “unauthorized uses of the photographs are commercial in nature,” as he “uses his Instagram account for the purposes of promotion—specifically, to promote his business interests, products, and ventures— specifically Talentless; to promote and sell the products and services of others; to maintain and increase his visibility and desirability as endorser and television personality; and to promote his own persona given his celebrity status and popularity.”

SEPTEMBER 2021 – Backgrid USA v. Rhude Designs LLC, 2:21-cv-07567 (C.D.Cal.)

In a newly-filed copyright lawsuit, Backgrid claims that Los Angeles-based brand Rhude and its founder Rhuigi Villaseñor are both on the hook for copyright infringement for engaging in “at least 4 instances of infringement by way of [their] unlawful reproduction and display of the celebrity photographs,” including one of actor James Franco wearing their designs. Specifically, Backgrid claims that the defendants “reproduced, distributed, displayed, and created unauthorized derivative works of the timely registered celebrity photographs on its Instagram account without consent or license” in an attempt to boost traffic to the brand’s social media account and its e-commerce site.

In furtherance of efforts “to promote the brand, both the Rhude Brand and Villaseñor engage customers and prospective customers through their Instagram accounts,” the photo agency asserts, alleging that “Rhude has driven significant traffic to its Instagram and increased the goodwill to its brand through the unauthorized use of the celebrity photographs, and, thereby, has increased its revenues through the presence of the sought-after and searched-for celebrity photographs that frame this dispute.”

Such traffic translated into a “substantial ill-gotten commercial advantage and increased brand awareness as a direct consequence of the infringements,” per BackGrid, which claims that “Villaseñor personally participated in the willful infringement at issue in this case on behalf of the Rhude Brand by and through the Rhude Brand Instagram account, making the infringement on each account the responsibility of both the Rhude Brand and Villaseñor.”

SEPTEMBER 2021 – Robert O’Neil v. Blakel, Inc., 2:21-cv-07386 (C.D.Cal.)

In a short, 7-page complaint photographer Robert O’Neil accuses Blake Lively’s corporate entity of copyright infringement in connection with her since-deleted Instagram post that featured a photo of herself from August 2018. According to O’Neil, Lively “did not license the photograph from [him],” nor did she have his “permission or consent to publish the photograph.”

Interestingly (although, probably unsurprisingly), Instagram account @commentsbycelebs posted part of the same image back in August 2018 along with a screenshot of a comment that Lively made in response to another Instagram user who urged her to either “hire a stylist or fire the one you’re currently with,” but was not targeted in the same copyright infringement suit or a separate suit.

JULY 2021 – Javier Mateo v. Emily Ratajkowski, 2:21-cv-05684 (C.D.Cal.)

Javier Mateo filed suit against Emily Ratajkowski, asserting that he is the rightful owner of three photos that she “actively copied, stored, and/or displayed” on her Instagram account without his permission or authorization. Mateo claims that the model-slash-actress “engaged in this misconduct knowingly and in violation of the U.S. copyright laws.” 

Additionally, Mateo asserts in his complaint that Ratajkowski “has the legal right and ability to control and limit the infringing activities on her [Instagram] account,” “monitors the content on her account,” and “at all times had the ability to stop the reproduction and display of [his] copyrighted material.” Yet, the photographer plaintiff argues that she “willfully and volitionally posted” the images to her account, and “received a financial benefit directly attributable to the infringements,” while also allegedly “harming … [the] potential market for the photographs.”

JULY 2021 – Integral Images v. Dua Lipa, 2:21-cv-05470 (C.D.Cal.)

In a largely run of the mill copyright infringement complaint, Integral Images asserts that Lipa posted the now-deleted photo to her Instagram account, along with the caption, “I’ll be living under big fluffy hats until further notice,” without licensing the photo or otherwise receiving the photo licensing agency’s authorization, thereby, running afoul of federal copyright law. Hardly an innocent mistake, Integral Images claims that Lipa knowingly displayed the image without its authorization, and stood to benefit by posting it to her heavily-followed Instagram, as the account is “monetized in that it contains content designed to accumulate followers who are directed to, via link and/or advertisement, consume and purchase [her] content.”

JULY 2021 – Timur Mishiev v. Katharine McPhee Foster, 2:21-cv-05682 (C.D.Cal.)

JULY 2021 – John Carta v. Kaley Christine Cuoco, 2:21-cv-05681 (C.D.Cal.)

JUNE 2021 – Backgrid USA, Inc. v. Lisa Rinna, 2:21-cv-04779 (C.D. Cal.)

FEBRUARY 2021 – Backgrid USA, Inc. v. Outdoor Voices, Inc., 2:21-cv-01325 (C.D.Cal.)

Outdoor Voices is on the hook for copyright infringement, according to a newly-filed suit. “BackGrid is the owner and exclusive copyright holder of a photographic image, originally created by photographer Silvio Antonio as part of a series of photographic images, depicting international model Alessandra Ambrosio walking and wearing a light orange colored sweat suit that, on information and belief, was designed by defendant Outdoor Voices,” the photo agency asserts in its complaint. Despite “never licens[ing] the photograph to Outdoor Voices,” Backgrid claims that the company “copied” the image and “distributed it on Instagram on February 5, 2020, via its account @outdoorvoices.” BackGrid says that it “discovered Outdoor Voices’ infringement of the photo on or about February 6, 2020.”

At the same time, Backgrid asserts that Outdoor Voices similarly infringed two separate photos “depicting musician Harry Styles walking near a white SUV”  – while wearing Outdoor Voices apparel  – when it “copied … and distributed them on Instagram story on August 18, 2018, via its account @outdoorvoices,” which BackGrid discovered “on or about August 18, 2018.”

Such allegedly unauthorized use of the image by Outdoor Voices – which “specifically posted the Photographs on Instagram to advertise the Outdoor Voices apparel worn by Alessandra Ambrosio and Harry Styles” – “harms BackGrid’s business model by driving down the prices for legitimately licensed celebrity images and driving away BackGrid’s actual and potential customers,” the photo agency argues, noting that “BackGrid’s customers—among them, media companies who pay large license fees for celebrity visual content—are less likely to purchase licenses, or pay as much for a license, when the same visual content will be widely distributed simultaneously on publicly available social media.”

JANUARY 2021 – Xposure Photo Agency Inc., v. Dundas World Ltd., 2:21-cv-00612 (C.D.Cal.)

Following a bit of a slowdown in filings, likely a result of the COVID-19 pandemic, and due, in part, to a marked drop in filings by notorious copyright case-filer Richard Liebowitz, who Law360 notes has “routinely filed dozens of copyright cases each month [in recent years], but filed just four since the start of December,” designer Peter Dundas’ brand is on the receiving end of a copyright infringement suit. According to a complaint filed on January 22, Xposure claims that Dundas World posted a photo of “depicting model and Instagram star Maya Henry wearing clothing designed by [Dundas] and accompanied by singer-songwriter Liam Payne” on its Instagram story “specifically to advertise [its] ‘D6’ line of apparel.”

Xposure asserts that Dundas’ “unauthorized use is commercial in nature, [as] Dundas uses its Instagram feed for the purposes of promotion—specifically, to promote its own business interests, products, and ventures. Indeed, Dundas specifically posted the photograph to its story to advertise the Dundas-designed clothing worn by Maya Henry in the photograph.” Particularly, Xpsoure argues that “Dundas writes in the post ‘@maya_henry in #D6’ with D6 being one of the lines of apparel offered by Dundas. In short, [its] Instagram posts and stories promote its products, the infringing post at issue here being no exception.”

NOVEMBER 2020 – Splash News and Picture Agency, LLC v. Ashley Benson, 2:20-cv-10864 (C.D.Cal.).

MAY 2020 – BackGrid USA, Inc. v. Justin Bieber, 2:20-cv-04685 (C.D.Cal.).

APRIL 2020 Angela Ma v. Kendall Jenner, Inc. and Kendall Jenner, 2:20-cv-03011 (C.D.Cal.).

By posting a video to her Instagram that New York-based Angela Ma took of her outside if the Balenciaga store in Soho, Kendall Jenner engaged in copyright infringement, and is the “direct and proximate cause of the infringement,” and thus, should be forced to pay either the sum of Ma’s “actual damages and [Jenner’s] profits, gains or advantages of any kind attributable to [her] infringement of [Ma’s] video” or … alternatively, statutory damages up to $150,000. 

FEBRUARY 2020 – Gonzalez v. I.A.M.GIA (US) LLC, 1:20-cv-01483 (SDNY).

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Buzzy Instagram-favored brand I.A.M.GIA posted photographs of Brazilian Victoria Secret model Bruna Lirio wearing its clothing and now is being sued for it. Photographer Alberto Gonzalez claims that the Southern California-based brand engaged in the “unauthorized reproduction and public display of two copyrighted photographs.” The problem, according to Gonzalez? “I Am Gia did not license the photographs from [him], nor did I Am Gia have [his] permission or consent to publish the photographs.”

FEBRUARY 2020 – Ramales v. Alexander Wang Incorporated, 1:20-cv-00926 (SDNY).

Felipe Ramales claims that Alexander Wang is on the hook for copyright infringement “arising out of [its] unauthorized reproduction and public display of a copyrighted photograph of singer Dua Lipa, owned and registered by Ramales, a professional photographer.”

FEBRUARY 2020 – Mishiev v. Hadid AKA Bella Hadid, 1:20-cv-00959 (SDNY).

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In another suit filed against Bella Hadid, the model is being accused of copyright infringement in connection with a photo that she posted to Instagram in September 2019, complete with the caption: “@zendaya made this hat so I shall wear this hat until I can no longer wear this hat anymore @tommyhilfiger.” Turns out, photographer Timur Missive says that he took and maintains a copyright registration for the original photo, which Hadid cropped and posted to her account.

DECEMBER 2019 – Xposure Photo Agency Inc. v. Isabella Khiar Hadid p/k/a Bella Hadid, 2:19-cv-10587 (C.D.Cal).

According to a complaint filed in a California federal court, “model, businesswoman, and entrepreneur” Bella Hadid – “or someone acting on her behalf” – took five images owned by Xposure Photo Agency Inc. and posted them to her highly-followed Instagram account on various dates between September 6, 2016 and June 17, 2018, thereby, engaging in “systemic piracy” that causes “harm to the existing and future market for the original photographs.”

DECEMBER 2019 – Vila v. Fenty Corp., 1:19-cv-11790 (SDNY).

In the second paparazzi lawsuit filed against it in 2019, Rihanna and LVMH Moët Hennessy Louis Vuitton’s Fenty is being sued for post a photo of model Irina Shayk to its Instagram stories. According to the complaint that professional photographer Carlos Vila filed, 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 – only to have the brand use the image (without his authorization) to promote its offerings on Instagram. 

NOVEMBER 2019 – Eva’s Photography, Inc. v. HVN, LLC, 1:19-cv-11010 (SDNY).

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Eva’s Photography, Inc. is taking on the eponymous brand for model-slash-DJ Harley Viera-Newton in a new suit, accusing the fashion company of infringing its copyright in a photo of Jennifer Lawrence. According to Eva’s Photograph’s complaint, while it is a “professional photography company the business of licensing photographs to online and print media for a fee,” HVN, LLC paid no such fee before it posted a photo of the actress in one of its dresses on its Instagram account.

NOVEMBER 2019 – Krieger v. Staud, Inc., 1:19-cv-10861 (SDNY).

Photographer David Krieger is suing buzzy young brand Staud over it allegedly “unauthorized reproduction and public display of a copyrighted photograph of actress Camila Mendes, [that the photog] owns and registered” with the U.S. Copyright Office. Krieger claims that in June, he photographed the Riverdale actress, who was wearing a Staud cropped top at the time, only to have the brand “post the photograph on its Instagram Story as tool to promote its brand.”

“Staud did not license the photograph from [him] for its Instagram Story,” Krieger claims, “nor did Staud have [his] permission or consent to publish the photograph on its Instagram Story,” thereby giving rise to his claim of copyright infringement.

OCTOBER 2019 – Carlos Vila v. Staud, Inc., 1:19-cv-09119 (SDNY).

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In another suit filed against Staud, photographer Carlos Vila is taking issue with the brand’s “unauthorized reproduction and public display of a copyrighted photograph of British model and fashion designer Alexa Chung with her model boyfriend Matt Hitt,” which is “owned and registered by Vila.” Despite not being “licensed or otherwise authorized to reproduce, publically display, distribute and/or use the photograph,” Vila claims that Staud “reproduced and publicly displayed the photograph on [its] Instagram Story,” thereby running afoul of the law.

OCTOBER 2019 – Splash News v. Moschino S.P.A., Jeremy Scott, and Belcalis Marlenis Almánzar p/k/a Cardi B, 2:19-cv-09220 (C.D.Cal).

Jeremy Scott and Moschino, along with rapper Cardi B, are the latest names on a long list of fashion brands and celebrities to be sued for allegedly running afoul of federal copyright law by posting others’ images to their social media accounts without paying to license the photos or receiving the copyright holder’s authorization to post them. In a lawsuit filed in a California federal court, Splash News claims that Moschino, Scott, and Cardi B interfered with its photo-licensing business by posting photos taken this spring of Cardi B wearing a flower-covered Moschino coat. 

Los Angeles-based Splash New asserts in its newly-filed complaint that despite reaching out to Moschino to notify the fashion brand about the photos and “offering [the brand] a license for internal or social media use,” Moschino and its creative director “copied” the images from The Daily Mail – which was granted a license to published the photos by Splash News – “almost instantaneously” and posted them on their respective social media accounts, while Cardi B posted one of the photos to her Instagram a month later.   

OCTOBER 2019 – O’Neil v. Ratajkowski et al1:19-cv-09769 (SDNY).

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Emily Ratajkowski’s “forever mood” is getting her sued. The model-splash-actress has been hit with a copyright infringement lawsuit after posting a photo of herself on her Instagram account. According to a complaint filed in a New York federal court on Wednesday, photographer Robert O’Neil claims that Ratajkowski and her corporate entity Emrata Holdings LLC ran afoul of federal copyright law when the 28-year old posted one of his photos to her Instagram story.

OCTOBER 2019 – Stewart v. Are You Am I, 1:19-cv-09738 (SDNY).

Early fashion blogger Rumi Neely’s company Are You Am I is being sued. According to photographer Michael Stewart’s complaint, the Los Angeles-based brand ran afoul of federal copyright law by allegedly posting a photo of “it” model Kaia Gerber on its Instagram account without authorization from the copyright-holding photographer.

OCTOBER 2019 – Jawad Elatab v. Hesperios, Inc., 1:19-cv-9678 (SDNY).

Just over a month after photographer Robert Barbara filed suit against Mode PR for posting a photo of Bella Hadid wearing a top and skirt made/sold by its client Hesperios, a different photographer is suing the womenswear brand for posting a separate but similar photo of Hadid. In the complaint that Jawad Elatab filed against Hesperios, he claims that the brand violated his copyright rights by posting a photo of Bella Hadid.

OCTOBER 2019 – Barbera v. Justin Bieber Brands, LLC et al, 1:19-cv-09532 (SDNY).

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We can add Justin Bieber to the list of celebs to be sued over paparazzi photos. The singer has been named in a copyright infringement suit after posting a photo of himself and cool-pastor Rich Wilkerson to his Instagram this spring without receiving authorization to do so from photographer Robert Barbera or paying a licensing fee. Barbera says that he “is the author of the photograph and has at all times been the sole owner of all right, title and interest in and to the photograph, including the copyright thereto,” making Bieber’s Instagram post a violation of his exclusive rights as the copyright holder.  

OCTOBER 2019 – Nam v. Marc Jacobs International, L.L.C., 1:19-cv-09463 (SDNY).

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And Marc Jacobs has been hit with yet another paparazzi lawsuit. In a complaint filed in a New York federal court, photographer Patrick Nam is suing the New York-based brand over its “unauthorized reproduction and public display of two copyrighted photographs of influencer Margaret Zhang. Nam claims that Marc Jacobs ran two “photographs of Zhang on [Instagram] as marketing to promote their brand,” despite not “licensing the photographs from [him],” or receiving “permission or consent to publish the photographs.”

OCTOBER 2019 – Nam v. Moschino USA, 1:19-cv-09462 (SDNY).

The same photographer that filed suit against Marc Jacobs is also taking on Moachino. According to Patrick Nam’s second lawsuit, “This action arises out of [Moschino’s] unauthorized reproduction and public display of a copyrighted photograph of model Golden Barbie at New York’s fashion week, [which is] owned and registered by Nam, a New York based professional photographer.” (Note: Golden Barbie is model Jasmine Sanders’ Instagram account handle).

Nam claims that “Moschino is not, and has never been, licensed or otherwise authorized to reproduce, publically display, distribute and/or use the photograph,” and thus, has run afoul of copyright law by posting.

OCTOBER 2019 – Splash News and Picture Agency, LLC v. Lopez2:19-cv-08598 (C.D. Cal.).

After New York-based brand Monse landed on the receiving end of a copyright infringement lawsuit for posting a photo of Jennifer Lopez in one of its dresses on Instagram in July and on the heels of Versace being sued before that for posting a photo on its account of Lopez wearing an all-over Versace print look to MTV’s Video Music Awards last year, the singer-slash-actress is now facing an infringement suit of her own after she posted a photo of herself and Alex Rodriguez on her heavily-followed Instagram account.

According to the complaint that Splash News filed in a California federal court last week, the Los Angeles-headquartered paparazzi photo agency is “the owner and exclusive copyright holder of a photographic image” captured by photographer Elder Ordonez in November 2017, which depicts “Lopez holding hands with her boyfriend Alex Rodriguez while out for breakfast in New York City.”  

OCTOBER 2019 – Eva’s Photography, Inc. v. Fenty Corp.1:19-cv-09120 (SDNY).

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Rihanna’s Fenty Corp. is being sued over a photo of Gigi Hadid. Eva’s Photography, Inc. asserts in a new lawsuit that Rihanna’s fashion venture, which she launched this year with luxury powerhouse LVMH Moët Hennessy Louis Vuitton, shared a photo of Gigi Hadid wearing a corseted dark denim top from the brand’s debut drop on its Instagram story. The problem, according to the New York-based professional photography company? Fenty Corp. didn’t have permission to do so. 

Eva’s asserts in its complaint, which was filed in a New York federal court on October 1, it “has at all times been the sole owner of all right, title and interest in and to the photograph” of Hadid pictured on a New York City street last month, including the copyright in the photo. 

This case settled in January 2020.

SEPTEMBER 2019 – Edward Opinaldo v. Spring London LTD., 1:19-cv-08788 (SDNY).

Spring London has landed on the wrong end of a copyright infringement suit. According to the complaint filed in New York federal court by counsel for Edward Opinaldo, the “leading fashion and luxury brand development, communications, digital, VIP and PR agency” has run afoul of the law by posting a photo that he took of actress Olivia Munn in June on its Instagram account – to promote its client Chalayan – without his permission.

Opinaldo says that he licensed the image of Munn to the Daily Mail, only to have Spring London “copy [it] from the Daily Mail and cropped off [his] watermark” before posting in on their Instagram account. “Spring London did not license the photograph from [Opinaldo] for its Instagram page, nor did Spring London have [his] permission or consent to publish the photograph on its Instagram page,” the complaint asserts.

SEPTEMBER 2019 – Robert Barbera v. Mode Public Relations, 1:19-cv-08636 (SDNY).

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A photo of Bella Hadid is at the center of another copyright infringement lawsuit. According to the complaint that repeat plaintiff Robert Barbara filed on September 17, Mode Public Relations is on the hook for posting an image that he took of the supermodel to its Instagram in July without receiving his authorization or paying the licensing fee his photos command in order to legally do so.

The paparazzi photographer asserts that despite opyright “reproducing and publicly displaying the photograph [of Hadid] on its Instagram Page” this summer in promotion of New York-based womenswear brand Hesperios, “Mode PR is not, and has never been, licensed or otherwise authorized to reproduce, publically display, distribute and/or use the photo.”

SEPTEMBER 2019 – Felipe Ramales v. Victoria Beckham Inc., VB Beauty (US) LLC, and Victoria Beckham, 1:19-cv-08650 (SDNY).

Former Spice Girl-turned-fashion figure Victoria Beckham is on the receiving end of a new copyright infringement lawsuit after posting a photo of herself to her Instagram story this summer. According to the complaint that counsel for Felipe Ramales filed in a New York federal court on Tuesday, Beckham did not seek the photographer’s “permission or consent” before posting the image of herself on her Instagram account nor did she – or her corporate entities, Victoria Beckham INC. and VB Beauty LLC – pay to license it.

SEPTEMBER 2019 – Robert O’Neil v. Jelena Noura Hadid aka Gigi Hadid, 1:19-cv-8522 (SDNY).

Just two months after prevailing in a copyright infringement lawsuit in connection with a photo she posted of herself on her Instagram account, Gigi Hadid has been named in a new lawsuit – this time for the “unauthorized reproduction and public display of a copyrighted photograph of English singer and songwriter Zayn Malik.” According to the copyright suit filed by professional photographer Robert O’Neil in a New York federal court on Friday, Hadid added a photo of former boyfriend Malik to her Instagram story in June 2018. The problem? She did not have O’Neil’s permission to do so.

SEPTEMBER 2019 – Elatab v. Canary Yellow LLC1:19-cv-08114 (SDNY).

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Virgil Abloh is being sued for copyright infringement for posting a photo of Bella Hadid. According to the complaint that Jawad Elatab filed in a New York federal court on Friday, the buzzy designer posted a photo of Hadid – toting a customized suitcase from a collaboration between his brand Off-White and Rimowa – to his Instagram account without paying to license the photo from the copyright-holding photographer or obtaining his “permission or consent to publish the photograph on [his] Instagram Story,” thereby giving rise to a copyright infringement dispute.

Elatab asserts in his complaint that Virgil Abloh – or better yet, Abloh’s corporate entity Canary Yellow LLC, which interestingly bears the name of a company that FUBU president Daymond John thought up back in 2003 – engaged in the “reproduction and public display of a copyrighted photograph of model Bella Hadid,” one that he took of the supermodel in New York in March. While Vogue and the Daily Mail appear to have licensed the image from Elatab (i.e., entered into a contract in which the photographer grants specific rights to another party to use his/her image(s) in a specific capacity in exchange for compensation) – by way of photo agency Backgrid, the same cannot be said for Abloh, according to the complaint.

AUGUST 2019 – Opinaldo v. Adeam International Corporation1:19-cv-07719 (SDNY) and Opinaldo v. The Wall Group, LLC, 1:19-cv-07720 (SDNY).

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Images of Emily Ratajkowski and Annabelle Wallis are at the center of two new paparazzi lawsuits. Edward Opinaldo has filed copyright infringement suits in a New York federal court in Monday, asserting that womenswear brand Adeam and creative management powerhouse The Wall Group posted images that he took of the buzzy model and English actress on their respective Instagram accounts without licensing the images or receiving his permission to do so.

AUGUST 2019 – Barbera v. Alexander Wang, Inc.,1:19-cv-07540 (SDNY)

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Photographer Robert Barbera is taking on Alexander Wang in a copyright lawsuit after the designer allegedly posted a photo of Dua Lipa wearing to his Instagram without licensing it or obtaining the photographer’s authorization. According to the complaint, which was filed in a New York federal court, Barbera claims that he “photographed English singer and songwriter Dua Lipa” when she was leaving the Bowery Hotel in New York in early April 2019.

While Barbera licensed the photo to other companies to use, “Alexander Wang ran the photograph on [its Instagram and Facebook accounts]” to promote its clothing” without paying to license the photo. In particular, Wang made use of the image of the singer wearing its $795 Mini Shirt Dress and $795 Halo Bag to implement shoppable links on its Instagram page to enable consumers to easily identify and shop the products, noting that the dress and bag were “now available” for purchase.

JULY 2019 – Vila v. Monse LLC, 1:19-cv-07078 (SDNY) 

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Monse is in trouble for posting a photo of Jennifer Lopez and Alex Rodriguez to its Instagram account without licensing it from the copyright-holder photographer who took it. That is what Carlos Vila asserts in the lawsuit he filed against the New York-based brand in a Manhattan federal court. According to Vila, Monse – which was launched to much fashion industry fury in 2016 by now-Oscar de la Renta creative directors Laura Kim and Fernando Garcia – “is not, and has never been, licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the photograph.” Although, the photo at issue did appear to have been licensed to Vogue to use on its site. 

More than that, the brand was not legally allowed to “falsify, remove and/or alter” the copyright management information, which identified Vila “as the photographer of the photograph.”

JULY 2019 – Splash News and Picture Agency, LLC v. Nicki Minaj, 2:19-cv-05822 (C.D.Cal.) 

In July, Splash News filed suit against “rapper, singer, songwriter, actress, businesswoman, and entrepreneur” professionally known as Nicki Minaj” for allegedly “copying” seven different photos – including ones depicting her “in a multi-colored Oscar De La Renta gown outside of the Harper’s Bazaar Party in New York City,” “in a plaid Burberry outfit in New York City,” “at a NYFW party in New York,” and in “a cheetah print outfit” – which appear to have been licensed to and taken from the Daily Mail – and “distributed them” for display to her 91 million Instagram followers.  

The well-known photo agency claims that the photos at issue “are creative, distinctive, and valuable,” and because of Minaj’s “celebrity status, [as well as] the photographs’ quality and visual appeal,” Splash News and the photographer it represents “stood to gain revenue from licensing” them. However, Minaj’s unauthorized use of the photos “made them immediately available to [her] 91 million followers and others, consumers of entertainment news … who would otherwise be interested in viewing licensed versions of the photographs in the magazines and newspapers that are [Splash News’] customers.” As a result, Minaj directly impaired “the existing and future market for the original photos.”

JULY 2019 – Vila v. Alison Lou LLC, 1:19-cv-06634 (SDNY) 

images via complaint

Carlos Vila, a professional photographer, sued celebrity-favored jewelry company Alison Loufor copyright infringement. According to Vila’s complaint, which was filed in a New York federal court in July, Alison Lou – whose Instagram includes a running series of stories called page “Loucitings,” in which it documents sighting of celebrities and influencers wearing its jewelry – postedaphotograph he took featuringmodel Emily Ratajkowski in a pair of its earrings. 

“Alison Lou did not license the photographs from [Mr. Vila] for its Instagram Story, nor did Alison Lou have [his] permission or consent to publish the photographs on its Instagram Story,” the complaint asserts. 

JULY 2019 – Barbera v. Christian Siriano Holdings LLC, 1:19-cv-06155 (SDNY) 

A photo of Lady Gaga from May 2018 has landed Christian Siriano in hot water. The musician-slash-Oscar winner stepped out in New York City in a striking crimson frock from the designer’s Fall/Winter 2018 collection to much media fanfare and paparazzi attention. One of the photographers who captured an image of Gaga, Robert Barbera, who asserts in his lawsuit that Christian Siriano posted the image on its Instagram without licensing the photo or otherwise seeking and receiving his authorization to do so. 

JULY 2019 – Peterson v. Frame LA Brands, LLC, 1:19-cv-06583 (SDNY) 

Photographer Christopher Peterson filed suit against Frame LA in a New York federal court in July, accusing the Los Angeles-based brand of copyright infringement in connection with a photo of Karlie Kloss. According to Peterson’s complaint, he took photos of the model while out in New York City in March that he licensed to the Daily Mail, which ran them alongside an caption noting that she was “a black leather blazer from FRAME over an off-white button-down top with a black pencil skirt, dark pantyhose and black heels.”

However, unlike the Daily Mail, which paid Peterson to use the imagery, Frame LA posted the images of Kloss as part of an Instagram “without a license”and without his “permission or consent” as a “tool to promote and sell its products,” thereby running afoul of copyright law. 

JULY 2019 – BackGrid USA, Inc v. Citizens of Humanity, LLC, 2:19-cv-06078 (C.D. Cal.)

image via complaint

BackGrid – one of Hollywood’s largest celebrity photograph agencies, which “owns the copyrights to [millions of] in-demand celebrity photographs – filed suit against Citizens of Humanity in a California federal court, accusing the denim-maker and its brand AGOLDE of posting images of Sofia Richie, Jessica Biel, Zayn Malik, and Caitlyn and Kendall Jenner without its authorization. 

According to Backgrid’s complaint, which was filed in mid-July, while each of the licenses it grants to “top-tier outlets, such as TMZ, Entertainment Tonight, New York Post, People Magazine, Huffington Post, the Daily Mail, as well as many television stations, newspapers and other prominent media outlets throughout the world,” is worth “up to hundreds of thousands of dollars,” Citizens of Humanity posted at least 4 of its images “on various media outlets including Twitter and Instagram to promote their clothing items” without licensing them. 

JULY 2019 – Peterson v. Marc Jacobs International, 1:19-cv-06121 (SDNY) 

Marc Jacobs is being sued by photographer Christopher Peterson for posting one of his photos to its Instagram without licensing the photo or receiving permission from the professional photographer. According to the complaint that he filed against the New York-based brand in New York federal court on July 1, Peterson claims that he took a photo of supermodel Bella Hadid – in a Marc Jacobs sweatshirt – and her boyfriend The Weeknd in New York in January, only to have Marc Jacobs post the copyright-protected image to its Instagram account the very next day. 

Peterson asserts that while he licensed the photo to the Daily Mail, which “ran an article that featured the photograph,” he did not license it to Marc Jacobs. Yet, he claims that the LVMH-owned brand posted the image on its heavily-followed Instagram account “to promote Marc Jacobs clothing,” namely, the sweatshirt that Hadid was wearing, which was on sale at the time, and was sure to “crop off the watermark [stating, ‘Christopher Peterson’].” 

MAY 2019 – Barbera v. Ariana Grande and Grandari, Inc., 1:19-cv-04349 (SDNY)

image via complaint

Robert Barbera is taking on Ariana Grande. According to the Splash News photographer’s suit, which was filed in a New York federal court, he “photographed singer, songwriter and actress Adriana Grande,” who turned around and posted two of the photos on her Instagram account this summer to promote the release of her “Sweetener” album without his authorization.  

Just a couple of months after it was filed, the case was settled out of court in mid-July.

MAY 2019 – Barbera v. CBS Interactive, Inc., 1:19-cv-04298 (SDNY) 

Photographer Robert Barbera, who has been on a litigation spree as of late, filed a copyright infringement against CBS, alleging that the media giant infringed his rights in a photo of Justin Bieber by “reproducing and publicly displaying it” in an article documenting the “most liked Instagram pics” on March 13. According to Barbera, “CBS did not license the photograph from [him]” for its article, “nor did CBS have [his] permission or consent to publish the photograph on its website.” 

APRIL 2019 – Barbera v. Versace USA, Inc., 1:19-cv-03563 (SDNY)

Versace is being sued over photos of Jennifer Lopez. The American arm of the famed Italian design house has been slapped with a copyright infringement lawsuit for posting two photos on its highly-followed Instagram account of the musician-slash- actress in head-to-toe Versace at an MTV Video Music Awards after party this summer without licensing the photos or otherwise seeking and receiving photographer Robert Barbera’s authorization to do so. 

According to Barbera’s complaint, which was filed in a New York federal court in April, Versace “willfully, intentionally, and purposefully, in disregard of and indifference to [his] rights … infringed [his] copyright in the photographs by reproducing and publicly displaying [them] on [Instagram].” As it turns out, “Versace is not, and has never been, licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the photographs” of Lopez, a longtime friend of the brand, who made headlines after attending the Grammy Awards in February 2000 in a plunging green Versace silk chiffon dress. 

MARCH 2019 – BackGrid USA, Inc. v. Fashion Nova, Inc., 2:19-cv-01476 (C.D.Cal.) 

According to BackGrid’s complaint, which was filed in a California federal court in March, it is in the business of licensing its copyright-protected photos of well-known celebrities to other outlets in furtherance of deals that are worth “up to hundreds of thousands of dollars.” Despite using BackGrid’s images of Kourtney Kardashian, Blac Chyna, Amber Rose, and 21 Savage on its site, BackGrid asserts that Fashion Nova never licensed or received its authorization, and instead, opted to simply “appropriate [the copyrighted images] for itself.” 

JANUARY 2019 – Xclusive-Lee, Inc., v. Jelena Noura “Gigi” Hadid, 1:19-cv-00520 (EDNY) 

Supermodel Gigi Hadid was sued for a second time in federal court in Brooklyn, New York in January 2019. According to Xclusive-Lee’s complaint, Hadid “copied and posted” one of its photos of her to her Instagram “without license or permission from Xclusive,” prompting the photo agency to file – and ultimately, lose – a copyright infringement suit.   

Hadid ultimately prevail when the court dismissed the case, finding that Xclusive-Lee had not registered the photo at issue before filing suit.

FEBRUARY 2018 – Odell Beckham Jr v. Splash News and Picture Agency, LLC and Miles Diggs, 2:18-cv-01001 (E.D. La.)

In a role reversal, football star 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. “The audacity of Splash News to demand payment from Beckham – the very person who provided value to the Photos – is shocking, reeks of bad faith, and emphasizes the utterly troll-ish behavior of Diggs and Splash,” the complaint asserted. 

Beckham alleged that Diggs sold or licensed the images to Splash, which then licensed them to a variety of gossip websites, including TMZ, and DailyMail.com, in exchange for a royalty fee. However, “The only reason that the photos have any value is because they depict Beckham,” according to the complaint. “Yet, Beckham received no compensation from Diggs or Splash.”

That case ultimately settled out of court in February 2019. 

JANUARY 2018 – Splash News and Picture Agency, LLC, v. Jessica Simpson, et al, 2:17-cv-00591 (C.D.Cal.) 

According to Splash News’ complaint, which was filed in federal court in California, Simpson “or someone acting on her behalf” took a copyright protected photo from the Daily Mail’s website and published it on Simpson’s social media accounts. While Splash News alleges that the Daily Mail obtained a limited license to publish the photo online in August, Simpson, herself, did not receive authorization to post the photo.

That case ultimately settled out of court in March 2018. 

SEPTEMBER 2017 – Cepeda v. Jelena Noura “Gigi” Hadid and IMG Worldwide, Inc., 1:17-cv-00989 (E.D. Va.)

image via complaint

Gigi Hadid was slapped with a copyright infringement lawsuit after posting a photo of herself on her Instagram and Twitter accounts last summer. According to a the suit filed by photographer Peter Cepeda in the U.S. District Court for the Eastern District of Virginia, the famous model posted a photo of herself – which Cepeda took and in which he holds exclusive rights – amounting to an “act of infringement [that] was willful and intentional, in disregard of and with indifference to the rights of Cepeda.”

That case ultimately settled out of court in December 2017. 

APRIL 2017 – Xposure Photos UK Ltd. v. Khloe Kardashian et al, 2:17-cv-03088 (C.D.Cal.) 

Khloe Kardashian made headlines in April 2017 when she was sued by Xposure Photos for posting a photo of herself on her Instagram account last fall. According to its suit, Xposure claimed that the reality television star ran afoul of 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.

Following mediation, that case settled in February 2018, with Kardashian later saying that she “had to pay a lot” in connection with the settlement. 

Sam Bankman-Fried and a number of big-name FTX “ambassadors” have been named in a second proposed class action lawsuit over their promotion of the now-bankrupt crypto exchange. On the heels of being hit with the class action complaint that Edwin Garrison filed with the U.S. District Court for the Southern District of Florida on November 15, Bankman-Fried, Tom Brady, Gisele Bundchen, Stephen Curry, Shaquille O’Neal, Udonis Haslem, David Ortiz, William Trevor Lawrence, Shohei Ohtani, Naomi Osaka, Larry David, Kevin O’Leary, and the Golden State Warriors are being accused in another Florida-filed lawsuit of engaging in deceptive and unfair trade practices and civil conspiracy. 

Given that Kavrui’s complaint was drafted by the same attorneys as those representing Garrison (namely, Adam Moskowitz and Boies Schiller’s David Boies), the allegations are largely identical to the ones set out by Garrison. In the newly filed complaint, Plaintiff Sunil Kavuri names the same defendants and details the same alleged wrongdoing in helping to promote the offer and sale of unregistered securities by way of FTX, while also failing to disclose “the nature, scope, and amount of compensation they personally received in exchange for the promotion of the deceptive FTX platform.” 

The newer suit does contain a number of claims that depart from those alleged by Garrison, with Kavuri starting off, for instance, by arguing that “there can be no dispute that claims in this case must provide for strict liability, and therefore, if the FTX yield-bearing accounts (“YBAs”) are found to be ‘securities,’ all of the FTX ‘brand ambassadors’ can simply have no defense to the claims in this action.” Kavuri’s also asserts that attempts by the defendants to “push the ‘caveat emptor’ defense in the press, will have no application.” 

Further setting the stage in his complaint, Kavuri argues that this is not a case “where [he] made a ‘risky’ investment in stock or cryptocurrency, or that he lost money speculating on various cryptocurrency projects.” Instead, his claims that his case arises “simply from the purchase of a YBA,” which was “guaranteed to generate returns on his significant holdings in the account, regardless of whether those assets were held as USD, legal tender or cryptocurrency, and regardless of whether any trades were made with the assets held in the YBA.” In other words, the YBA “was portrayed to be like a bank account, something that was ‘very safe’ and ‘protected,’” per Kavuri, who contends that this is “the narrative that the defendants pushed in promoting the offer and sale of the YBAs, which are unregistered securities.” For that, Kuvari asserts that the defendants are “liable for [his] losses, jointly and severally and to the same extent as if they were, themselves, the FTX entities.” 

Just as in Garrison’s case, Kavuri accuses the defendants of violating the Florida Securities and Investor Protection Act, which makes it unlawful to sell or offer to sell unregistered securities, and the Florida Deceptive and Unfair Trade Practices Act, and is seeking an order from the court that the YBAs were securities required to be registered with the U.S. Securities and Exchange Commission and state regulatory authorities, that the “deceptive” FTX Platform “did not work as represented,” and that the defendants were paid “exorbitant sums of money to peddle FTX to the nation.” 

Not Your Average Endorsers

Reflecting on the ability of class action plaintiffs to successfully pursue FTX’s brand endorsers over their appearances in commercials and social media campaigns in order to promote the crypto exchange, at least some lawyers have expressed skepticism. “The plaintiffs are more likely to extract damages from Bankman-Fried than they are from the celebrity endorsers, Darren Heitner, a Florida lawyer who specializes in athletes and technology, told the Washington Post in connection with Garrison’s suit. “I don’t think people signed up to FTX because Tom Brady said ‘I put all my money there’ — in fact he never said that. I would not be terribly surprised if the celebrities prevail on a motion to dismiss.” 

Others are not quite convinced that the celebrity ambassadors have such an easy way out. “The problem these celebrities have is that they went a step further than just appearing in a commercial,” Sherman Silverstein’s Alan Milstein told Sportico, “In the ads, some of them announce that they are excited ‘to partner’ with FTX or to be ‘brand ambassadors’ [for] FTX or to become big-time investors themselves in the firm.” Both Garrison and Kavuri allege “some of the biggest names in sports and entertainment have either invested in FTX or been brand ambassadors for the company,” pointing to Kevin O’Leary, for example, is an FTX shareholder, and linking to an FTX press release that announced Stephen Curry as an FTX ambassador and shareholder in 2021. 

The plaintiffs also allege that Tom Brady, Gisele, Shohei Ohtani, and Naomi Osaka took ownership stakes in the company, seemingly in furtherance of an argument that these are not your average endorsers, and thus, they should be treated accordingly for helping to promote FTX. The failed crypto exchange, which was until recently led by Bankman-Fried, used these stars’ “credibility to try and convince the public the investment was safe,” Milstein said distinguishing the endorsements at play here from the consumer goods-centric ads that brands traditionally enlisted sports stars and other celebrities for. 

FTX’s strategy of pushing famous endorsers-as-part owners is part of a larger trend of companies, particularly startups, enlisting celebrities to promote projects, while also bringing them on-board in advisory and/or investor roles, which diverges from the longstanding practice of celebs simply appearing in ad campaigns and maybe doing some additional promotional work without taking on any additional roles.

Well-known celebrities are actively exercising more leverage when negotiating the terms of the deals they enter into, and as a result, they stand to profit even more handsomely with an equity stake (or in many cases, a profit-sharing agreement) than if they were to simply take the usual endorsement check. Moreover, endorsements that stem from these ownership endeavors tend to be viewed as more authentic in the eyes of consumers, which bodes well for the promoted company and its goods/services, particularly in a market that is saturated with often-undisclosed influencer advertising and diminishing consumer trust.

“Taking on a more active role in a business – or at least appearing to – essentially demonstrates that the celebrity has a stake in the success of that business, beyond the money they would receive for an endorsement,” ThingTesting stated last year. In many cases, this is a win-win for both sides; ThingTesting points to a 2015 deal in which “Beyonce asked Uber to provide equity, rather than cash, in exchange for a performance at a corporate event the company hosted. When the ride-sharing app went public in 2019, she was able to cash out.”

More Litigation to Come

The two lawsuits come as crypto scams are on the rise. In their respective complaints, Garrison and Kavuri cite the Federal Trade Commission’s finding that “cryptocurrency scams have increased more than ten-fold year-over-year with consumers losing more than $80 million since October 2020, due in large part to the use of such celebrity endorsements,” as well as advertising on social media. At the same time, the Securities and Exchange Commission is sending a similar message, with the agency’s Enforcement Division Co-Director Steven Peikin saying this summer that investors “should be skeptical of investment advice posted to social media platforms, and should not make decisions based on celebrity endorsements,” and noting that “social media influencers are often paid promoters, not investment professionals, and the securities they are touting, regardless of whether they are issued using traditional certificates or on the blockchain, could be frauds.”

The rising number of lawsuits centering on the advertising and endorsement of FTX are expected to continue to grow, with Elliott Lam, a Canadian citizen and Hong Kong resident, filing a proposed class-action lawsuit in San Francisco federal court on Sunday on behalf of himself and “thousands, if not millions” of people outside the United States who used FTX’s platform. In the case, the Golden State Warriors is named as a defendant alongside Bankman-Fried, who allegedly leveraged “the international reach” of the NBA team to “outcompete[e] competitor trading platforms and get consumers to use the FTX platform technology instead,” as FTX “need[ed] to attract new consumers to continue funneling them (and the money they put into the FTX system) as part of an elaborate scheme to prompt up the businesses.” 

The case is Sunil Kavuri, et al., v. Sam Bankman-Fried, et al., 1:22-cv-23817 (S.D. Fla.)

Vogue has landed a win in the first round of a lawsuit against Drake and 21 Savage over their unauthorized use of the magazine’s trademark to promote their newly-released album. On the heels of Advance Publications d/b/a Condé Nastfiling a trademark infringement suit against Drake and 21 Savage on Monday, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York ordered that the two musicians immediately refrain from using Vogue’s trademark-protected name to promote their album, Her Loss, and continue to hold off from doing so until at least November 22 when counsel for the parties are slated to appear in court to show cause for a longer-term preliminary injunction. 

In the brief order issued on Wednesday, Judge Rakoff found that Condé Nast has a likelihood of success on its trademark claims in light of Drake and 21 Savage’s creation and dissemination of “images of a counterfeit cover of Vogue magazine featuring the Vogue mark and an image of [themselves], as well as copies of a counterfeit magazine purporting to be a genuine issue of Vogue magazine.” Specifically, the court stated that, “among other things, the defendants’ actions are confusing consumers about the origin, sponsorship, or approval of the counterfeit cover and counterfeit magazine, misleading consumers to believe that these are genuine and authentic materials associated with Condé Nast and Vogue magazine.” 

Condé Nast pointed to media articles linking the musicians’ faux magazine cover to Vogue, and social media user comments that it claims establish that consumers are confused about the nature of the allegedly infringing promo campaign and that reflect “the widespread belief that the counterfeit issue and counterfeit cover disseminated by the defendants were real.” 

Drake and 21 Savage's promo Vogue magazine

“A temporary restraining order is necessary … to protect the public from confusion, deception, and mistake, and to protect Condé Nast from immediate irreparable injury,” according to the court, which ordered that Drake and 21 Savage be barred from disseminating more of the counterfeit materials. 

Additionally, the court is requiring Drake and 21 Savage to “take down and remove all existing internet and social media posts on all websites and social media accounts … that contain or reflect (i) any depictions of or references to the Counterfeit Magazine and/or the Counterfeit Cover, (ii) any use of the [Vogue] trademarks for commercial purposes, including … to advertise, market, or promote the album Her Loss, (iii) any use of [Anna] Wintour’s name, image or likeness for commercial purposes, and/or (iv) any false or misleading statements or misrepresentations concerning the Counterfeit Magazine, the Counterfeit Cover and/or Drake and 21 Savage’s participation or appearance in Vogue magazine.” 

Still yet, the musicians are directed to “take down and remove from public display and circulation all existing physical print posters, in all locations, depicting the Counterfeit Cover” – and remove from circulation “all existing physical copies of the Counterfeit Magazine” – that were displayed or circulated by them or at their direction. 

In its complaint on Monday, Condé Nast claims that it attempted “resolve this matter amicably” with Drake and 21 Savage “as early as October 31” in order to “curtail further public confusion” before the release of their album on November 4, “Nothing was done, with the defendants continuing to benefit from the infringing social media posts that would take seconds to take down.” The defendants’ “flippant disregard for Condé Nast’s rights have left it with no choice but to commence this action,” Condé contends, setting out federal and state law claims of trademark infringement/ counterfeiting, false designation of origin, and false advertising, as well as violations of New York General Business Law. 

As of the time of publication, an Instagram post depicting the cover that previously appeared on Drake’s and 21 Savage’s respective Instagram accounts had been removed. 

UPDATED (Nov. 17, 2022): In order “to avoid unnecessary cost and expense,” Drake and 21 Savage consented to a preliminary injunction “without conceding any liability with respect to the claims asserted by Condé Nast in this action, and without conceding any wrongdoing on their part.” Among other things, the injunction prohibits the musicians from “using displaying, disseminating, or distributing copies of the Cover and Magazine,” and from using the Vogue trademark or any confusingly similar marks in a commercial capacity.

The case is Advance Magazine Publishers v. Aubrey Drake Graham, et al., 1:22-cv-09517 (SDNY).

In the wake of Elon Musk closing the deal to buy Twitter on October 27 and soon after firing the management, users have been reconsidering the platform. Hashtags #TwitterMigration and #TwitterExodus are gaining popularity, and the most common name found in conjunction with it is Mastodon – the new home for fleeing tweeters. In fact, Mastodon is not that new. It was launched in October 2016 by German software developer Eugen Rochko, spurred on by his dissatisfaction with Twitter and his concerns over the platform’s centralized control. 

After its 15 minutes of fame in early 2017, Mastodon’s growth slowed to a crawl, but now, it is on the upswing again – more than 70,000 users joined the network the day after Musk’s Twitter deal was announced. At the time of writing, Mastodon has reached more than a million active users, with almost half a million new users since October 27. Meanwhile, Twitter was losing its most active users from its 238-million-strong user base even before Musk acquired the platform.

Signing Up & Servers

Registering on the network takes a few minutes, just like any other social media app. However, Mastodon is not a Twitter clone – you need to join server, which are grouped by topic and location, and are supposed to bring users together by common interest. The server is also where your account lives, so your account name will be yourname@server-name (TFL’s is tfl@mastodon.online).

Mastodon is not a platform, but a decentralized network of servers. This means no central authority owns and governs the entire communications platform (that is, the opposite of Musk owning Twitter and changing his mind about how the platform operates at any moment). When you join a server, what you post is visible within that particular server. To an extent, your content can also be seen across the Mastodon network, depending on other servers’ policies being compatible with the one you joined. This is in stark contrast to Twitter, where everything you tweet is available to all Twitter users, unless your account is protected for followers only.

A blurb about Mastodon's servers

There are currently just over 4,000 servers to choose from. Some are closed for registration as they have reached capacity or simply prefer to keep their communities smaller. For example, Mastodon’s flagship server mastodon.social is not currently accepting new members. After you register by joining your chosen server, the interface looks somewhat similar to Twitter, with short posts (up to 500 characters by default) called “toots” instead of “tweets.” Given the recent spike in popularity, the app can be slow to respond, as some servers are experiencing heavy loads.

The point of selecting a server on Mastodon is to let you communicate in an environment with policies you prefer and a community you like. Each server can have its own code of conduct and moderation policies. Individual server admins can also ban users and other servers from accessing their content and posting. Furthermore, all servers form part of an interconnected network called the fediverse. The fediverse can comprise any social media app that uses the same decentralized principles as Mastodon. That means users within the fediverse could potentially follow each other across servers. 

For those looking for a relatively seamless transition without losing their online community, there is a Twitter migration toolkit for finding your followers and follows on Mastodon. There is also a tool that allows you to cross-post between the two.

Is Mastodon the New Twitter?

In principle, decentralization can ensure greater freedom of speech, one of the main concerns users have about Twitter’s future. Twitter provides content through opaque AI-based algorithms that select what you see on your feed, while Mastodon shows posts in chronological order without curation. Thanks to community moderation, most servers hold users to a high standard, and can easily ban or filter hate speech, illegal content, racism, discrimination against marginalized groups, and more.

In 2017, Vice journalist Sarah Jeong even called it “Twitter without Nazis.” It is worth noting that community moderation has shown its force in practice: When the far-right platform Gab moved to Mastodon in 2019, many servers across the network banned it without any central direction. While it might still be using Mastodon code, Gab does not appear to be part of the fediverse anymore.

All in all, Mastodon is neither a replacement for Twitter nor a decentralized replica of it – the presence of individual servers makes it fundamentally different to any social media platform. As an open-source, decentralized network, Mastodon appeals to young, tech-savvy users, and it will not come as a surprise if many of them find Mastodon to be a welcome upgrade to Twitter. Additionally, freedom-of-speech seekers, who are worried about central authority censorship, could be another group finding a new home there.

For now, it is too soon to tell which user groups will become the most active, and how large Mastodon will become – and whether brands will be able to easily join in the party in order reach consumers on yet another platform. 

Nataliya Ilyushina is a Research Fellow at RMIT University. (This article was initially published by The Conversation.)

Kim Kardashian has settled charges waged by the U.S. Securities and Exchange Commission (“SEC”), which accused her of “touting on social media a crypto asset security offered and sold by EthereumMax without disclosing the payment she received for the promotion.” Specifically, the SEC found that the reality star-slash-brand-builder “failed to disclose that she was paid $250,000 to publish a post on her Instagram account about EMAX tokens, the crypto asset security being offered by EthereumMax.” In prompting the crypto tokens in her June 2021 Instagram post, Kardashian included a link to the EthereumMax website, where the company included instructions for potential investors to purchase EMAX tokens.

The SEC found that Kardashian’s post violated the anti-touting provision of the federal securities laws ((17(b) of the of the Securities Act), which “makes it unlawful for any person to promote a security without fully disclosing the receipt and amount of such consideration from an issuer.” In order to avoid engaging in violations of the anti-touting provisions of the federal securities laws, the SEC has stated that individuals who promote “a virtual token or coin that is a security must disclose the nature, scope, and amount of compensation received in exchange for the promotion.” (In other words, #ad, on its own, is not sufficient here.)

In a statement on Monday, the SEC revealed that “without admitting or denying the SEC’s findings,” Kardashian agreed to settle the charges, pay $1.26 million, including approximately $260,000 in disgorgement, which represents her promotional payment, plus prejudgment interest, and a $1,000,000 penalty. Kardashian also agreed to refrain from promoting “any crypto asset securities” for three years, and to cooperate with the SEC’s ongoing investigation.

“This case is a reminder that, when celebrities or influencers endorse investment opportunities, including crypto asset securities, it does not mean that those investment products are right for all investors,” SEC Chair Gary Gensler said on Monday. “We encourage investors to consider an investment’s potential risks and opportunities in light of their own financial goals.” Kardashian’s case “also serves as a reminder to celebrities and others that the law requires them to disclose to the public when and how much they are paid to promote investing in securities,” he added.

“The federal securities laws are clear that any celebrity or other individual who promotes a crypto asset security must disclose the nature, source, and amount of compensation they received in exchange for the promotion,” said Gurbir S. Grewal, Director of the SEC’s Division of Enforcement. “Investors are entitled to know whether the publicity of a security is unbiased, and Ms. Kardashian failed to disclose this information.”

In addition to the EMAX settlement, the SEC recently announced that it filed suit Bermuda-based Arbitrade Ltd. and Canadian firm Cryptobontix Inc., along with their principals – Troy R. J. Hogg, James L. Goldberg, and Stephen L. Braverman – and Max W. Barber, founder and sole owner of SION Trading, which is named a defendant in the case, for allegedly perpetrating a cryptocurrency pump-and-dump scheme.

Not her first brush with issues involving EMAX, Kardashian was named as a defendant in a class action lawsuit over EthereumMax, which accuses the token-maker and a handful of famous endorsers of engaging in a “pump-and-dump” scheme, complete with undisclosed endorsements. In the complaint that he filed in a California federal court in January, Plaintiff Ryan Huegerich claims that the defendants “misleadingly promoted and sold EMAX tokens through social media advertisements and other promotional activities, while failing to adequately disclose material connections between EthereumMax and the celebrity defendants endorsing EMAX.”

Huegerich alleged that in her Instagram post – which read, “Are you guys into crypto???  . . . Sharing what my friends told me about the Ethereum Max token! A few minutes ago Ethereum Max burned 400 trillion tokens, literally 50% of their admin wallet giving back to the entire E-MAX community” – Kardashian “did include a promotional disclosure.” However, the disclosure was “tucked in the far bottom right of the post and is just three characters long: ‘#AD,’” with Huegerich noting that Kardashian “has experience and familiarity with making misleading claims in similar promotional endorsements on her Instagram and Twitter accounts.” For example, he claims that in 2015, the Food and Drug Administration ordered Kardashian to remove a promotional post for morning sickness medication that lacked adequate disclosures. 

Kardashian has since sought to get the claims that Huegerich lodged against her tossed out, arguing that her Instagram post – which did “not” amount to “financial advice”– contained a clear disclaimer that “undermine[s] any consumer’s claim of deception.” In case that is not enough, counsel for the star argued that “platforms like Instagram and Twitter are laden with puffery and exaggeration, such that ordinary consumers should know that they are not trustworthy sources of financial advice.” And still yet, Kardashian contends, “Crucially, no named plaintiff alleges that they in fact viewed either Instagram post before purchasing tokens during the relevant time period.”  

THE BIG PICTURE: While the Federal Trade Commission has been largely unwilling to take notable action when it comes to undisclosed social media posts, other agencies – such as the Food and Drug Administration and the SEC – seem to be inclined to step in when the goods/services being promoted without the necessary disclosures rise to a certain level of importance. The SEC’s settlement with Kardashain suggests that crypto rises to that level. The parties’ deal comes amid rising attention to crypto among various agencies and lawmakers, alike, which are grappling with how to regulate the increasingly popular market, which boasts a value of more than $3 trillion.