Amid mounting legal troubles in connection with his now-defunct deal with adidas, Ye (formerly Kanye West) has been named in a new copyright infringement lawsuit. This time, Ye is on the hook for allegedly posting a street style photo to his Instagram account without the photographer/copyright holder’s authorization. According to the complaint that she filed in a California federal court on Friday, Michaela Efford claims that on October 4, 2022, Ye posted a photo that she captured of fashion editor Gabriella Karefa-Johnson during Paris Fashion Week in September 2022, a photo that she claims that she took with “the intention of it being used commercially and for the purpose of display and/or public distribution.”
“Without [her] permission or authorization,” Efford alleges in the newly filed lawsuit that Ye “volitionally copied and/or displayed [the] photograph” – which was registered by the U.S. Copyright Office in December 2022 – on his Instagram account. (For some context, Ye posted the full photo, as well as a zoomed-in version, after Karefa-Johnson called out his Yeezy Season 9 show, in which the rapper-slash-designer featured “White Lives Matter” t-shirts.) The photo “was copied and displayed by [Ye] without license or permission, thereby infringing on [her] copyrights in and to the photograph, Efford argues. She further states that alleged infringements – which have since been removed from Ye’s Instagram account – “each include a URL for a fixed tangible medium of expression that was sufficiently permanent or stable to permit it to be communicated for a period of more than a transitory duration and therefore, constitutes a specific Infringement.”
In addition to arguing that Ye had “complete control over and actively reviewed and monitored the content posted on” his Instagram account, Efford asserts that he benefitted from the infringements by way of “increased traffic to the account, [which], in turn, caused him to realize an increase in his revenues” and that he “received a financial benefit directly attributable to the infringements.” Specifically, Efford contends that Ye’s Instagram account is “monetized in that [it] advertises [his] fashion brand and music,” and serves as “a key component of [Ye’s] popular and lucrative commercial enterprise.”
Nature of the Work: In what appears to be an attempt to get ahead of potential claims from Ye’s counsel about the validity of Efford’s copyright in the street style photo of Karefa-Johnson, counsel for the photographer asserts that “in creating the photograph, [she] personally selected the subject matter, timing, lighting, angle, perspective, depth, lens, and camera equipment used to capture the image.” The (potential) issue here, of course, comes in the form of arguments that street style and/or paparazzi photos (as distinct from more staged/stylized photos) generally lack the requisite creativity to amount to copyrightable subject matter due to the lack of creative input from the photographer.
This came up in the since-settled case that photographer Robert O’Neil filed against Emily Ratajkowski in 2019 for posting a photo he took of her on the street in New York to her Instagram account without authorization. In that case, counsel for Ratajkowski argued that O’Neil “merely took the photo when and where he happened to allegedly inadvertently cross paths with Ms. Ratajkowski, rather than choosing the timing or location or the photograph based on any sort of creative vision.” More than that, O’Neil had no control over Ratajkowski’s “clothes, expression, pose, makeup, posture, position on the street, what she was holding, or who else was in the photo,” the model’s counsel asserted in furtherance of a larger fair use argument. (If this sounds familiar, it may be because it echoes the argument made by counsel for Gigi Hadid in another since-settled copyright infringement lawsuit filed against the supermodel over her allegedly unauthorized posting of others’ images of herself on social media.)
The court in the Ratajowski case was mildly persuaded by O’Neil’s argument, finding back in 2021 that the nature of the copyrighted work factor “marginally” weighed in favor of O’Neil because the photo is “essentially factual in nature” as opposed to “expressive or creative,” and O’Neil “captured [his] subject in public, as [she] naturally appeared.” In other words, the court held that O’Neil was “not tasked with directing the subject, altering the backdrops, or otherwise doing much to impose creative force on the [photograph] or infuse the [photograph] with [his] own artistic vision.” The court also noted that that “reater leeway [is] allowed to a claim of fair use where the work is factual or informational.”
Back to the case at hand, Effort argues that Ye’s use of the photograph “harmed the actual market for the photo,” and as a result, she has been “substantially harmed.” With the foregoing in mind, Efford sets out a claim of copyright infringement, and is seeking either “an award of actual damages and disgorgement of all of [Ye’s] profits attributable to the infringements” or an award for statutory damages against Ye for each of the alleged infringements. Beyond that, Efford is also seeking injunctive relief to bar Ye from “any infringing use of any of [her] works” going forward.
The case is Efford v. Ye f/k/a/ Kanye West, 2:23-cv-04548 (C.D. Cal.).
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