Last month, model Gigi Hadid found herself part of a lawsuit in which she claimed her use of a paparazzi image was fair as she “contributed to it by smiling.” It seemed ridiculous and as if she didn’t have a chance, but her legal team have managed to swing the trial in her favor, getting the case dismissed. Here’s how they did it.
Most people thought there was no chance of Hadid coming up trumps in this dispute. After all, trying to claim copyright of an image for smiling in it hardly seemed to carry much legal weight. However, her lawyers have been successful in getting the case thrown out.
Copyright attorney Leonard French has taken to YouTube to release a video in which he reads through the decision made by US District Court Judge Pamela K. Chen. Thankfully, Hadid didn’t win the case because the judge sided with her claims that she was co-author because the smiled. Nor did she succeed because of her other claim that she was allowed to post the picture because she had cropped it. It was in fact thrown out due to the fact the photographer’s agency Xclusive-Lee, Inc. hadn’t secured copyright for the image at the time the complaint was filed. The copyright was, in fact, still pending approval.
The Supreme Court made the decision, and that now means Xclusive won’t simply be able to continue the case once the image copyright is approved. They’ll have to start over, re-filing, and paying all the consequential legal fees if they want to pursue Hadid and her team.
The case serves as a reminder for photographers and agencies to register a photo’s copyright before deciding to pursue a copyright claim in a court of law.
See the full video for the details.
Lead image: "20181007-105313-gigi-hadid-reebok-be-more-human-campaign-990x557" by yzapoo, licensed under CC CC0 1.0
Its a good demonstration of what Ive consistently said... most people know that photographer's are full of %$@^%$&% (in general). Very few have the ability to defend a copyright.
All the fancy gear talk, exotic locations posted on instagram etc and one pay check away from living under a tent.
We really need to pull together and form some sort of international association that maintains a legal fund to actively defend copyrights.
I'm not based in the US, so I'll ask a basic question you may know the answer to, how expensive is it to register a copyright? Is it registered in each state, or federally?
It is registered federally with the library of congress. It isn't expensive ($55 for each filing of up to a huge number of images) if you do large bulk uploads but if you are making copyright-able images on a daily basis that are going to be news I can imagine that the cost and time to register copyright on a daily basis can be arduous. (and only protects you in the US unless you register in every other country too)
Ah, cool. Thanks.
It's my understanding, at least in Canada, the registration isn't necessary to establish copyright. That's it's only a technical filing necessary to establish copyright as part of a suit. If my distinction makes sense. It's been a long time since Intellectual Property Law
Sort of creates a bar to entry so that there aren't too many claims.
In this sense, you'd only file if you were going to pursue a claim. Otherwise, you wouldn't need to file for registration to 'own' the copyright.
Does that make sense?
The copyright registration is retroactive by three months, so a photographer in the US can register a batch of images for copyright every three months and be fully covered. If the copyright for an image is infringed before the copyright for that image has been confirmed, the photographer should wait until it is confirmed before going to court--even if it means waiting months after the infringement occurred.
Kirk Darling wrote “The copyright registration is retroactive by three months, so a photographer in the US can register a batch of images for copyright every three months and be fully covered.”
To be very clear, the above example ONLY applies to “published” photographs. So, you could gather and register all your images within the three-calendar month timeframe to have a “timely” registration and, importantly, be able to pursue statutory damages from $750 to $30,000 and up to $150,000 (for willful infringement) and the ability to pursue your attorney fees and legal costs against the infringer (at the court’s discretion).
You can NOT combine both published and UNpublished images in the same application; they have to be separated into their own $55 copyright eCO registration application, either published or UNpublished, but NOT both. Copyright registration fees will likeLY increase in 2019 or the early part of 2020.
If the (posted) images are UNpublished, then they MUST be registered BEFORE the copyright infringement begins to be timely.
To qualify for a published registration, all photographs MUST be published within the SAME calendar year.
Mark Dunsmuir writes “I'm not based in the US…”
Hi Mark: I’m out of QC and now live in the US. For the last 10+ years, I’ve timely registered pretty much ALL my assignment, stock, and personal images and videos with the US Copyright Office (USCO).
Since January 1, 1978, US copyright law has federal jurisdiction only. US photographers can NOT litigate copyright infringements actions in county small-claims or state courts.
Currently, it costs US$55 to register up to 750 published images (per the SAME calendar year) via the eCO (aka, on-line or “e-Filing”) GRPPH copyright registration application. If you’ve posted your images on-line to either sell, license, or give them away (share or distribute with others), then your images have likely been published.
It’s US$55 to register up to 750 UNpublished images via the eCO's GRUPH copyright registration application. If you’ve posted your images on-line simply to “show” or “display” them publicly to others as a portfolio, then your images are likely UNpublished.
Here’s the USCO’s definition of “publication”: https://www.copyright.gov/help/faq/faq-definitions.html
You can NOT mix published and UNpublished images in the same application.
If you’ve registered an image as UNpublished, you do NOT have to register it (again) when published! Just timely register the image one-time and your set to go. My preference is to register my images as UNpublished.
If you just want to register one photograph, where you’re the sole author of the work, that does NOT include any third-party licensed, CC, Public Domain, or FREE images in your photograph (you created the entire photograph), and that’s NOT part of a work-for-hire arrangement (corporation), then its US$35 to register that one photograph, otherwise, it’s US$55 (Previously, I registered a single photograph where the artist posed next to her many paintings; since I didn’t create those paintings, I had to disclaim those creative works in my application, and my registration fee jumped to US$55.)
Currently with the updated GRPPH and GRUPH applications, photographer MUST include an image title (short caption) AND image file number (and date of first-publication for published images) for each image being registered. The USCO offers a FREE Excel template (aka, “Title List”) or you can create your own PDF document. If you’re registering, say 482 UNpubished images, you’ll have to include 482 image titles and 482 image file numbers (mind you, some of the images are the same and you could use the same caption; just the file number is different; as well, both the image title and image file number can be the same). So, it can take quite a bit of time to carefully and accurately complete your groups of photograph registration with the USCO. But that should NOT discourage you from timely registering your works with the USCO, as the results can be large money damages against Americans who exploit your images without a license (notwithstanding Fair Use).
USCO registration links: https://www.copyright.gov/registration/photographs/index.html
Copyright registration fees will likely increase this or next year.
Also, Canadians and other international photographers, whose countries belong to the Berne Convention, do NOT have to register their copyright claims with the USCO in order to pursue US-based infringers. Americans, on the other hand, MUST register or receive a USCO copyright refusal to have legal standing to file suit in a US federal court.
However, without your “timely” registered copyright (BEFORE the infringement occurs for UNpublished works OR within THREE calendar months of first-publication), it may be quite difficult to pursue US-based infringers if you want money damages (and attorney fees and legal costs).
For both US, Canadian, EU/UK, Australian/NZ, South American, and other international photographers, your timely registered copyright will provide your US copyright litigator with LEVERAGE to push the American infringer to settle out of court. If the infringer doesn’t settle, assuming the infringing use doesn’t fall with in Fair Use, and you prevail during trial, you’re now eligible from US$750 to US$30,000 (and up to US$150,000 for willful infringement) in statutory money damages and the recoupment of your attorney fees and legal costs against the infringers (at the court’ discretion). To mitigate their financial exposure, most all US-based infringers settle out of court.
Without your timely registered copyright, you and others can only pursue actual money losses (typically the missed licensing fee) and the disgorgement of profits made from exploiting your images (if any!) and you will NOT be able to pursue your litigation costs against the infringer. The legal cost to pursue American-based infringers without a timely registered copyright will typically not be economical, as your actual money damages are typically low and won’t cover your litigation costs.
In the very rare circumstances where a US-based infringer prominently exploits an unlicensed photograph commercially, like in a world-wide advertising campaign (say for a VISA card promotion) or on product packaging (like Campbell Soup cans), actual damages + disgorgement of profits could be in the millions of dollars. In this scenario, a timely registered copyright may not necessarily help the photographer, as actual damages could likely be substantially much larger than the maximum statutory damages.
The Copyright Alliance writes, “According to an AIPLA report [The American Intellectual Property Law Association] …the average cost of litigating a copyright infringement case in federal court from pre-trial through the appeals process is $278,000.” (see https://copyrightalliance.org/ca_post/small-claims-on-the-horizon/).
This law firm article reiterates my point that all international artists who produce creative content should timely register them with the US Copyright Office (just replace the word “corporation” with “photographer”): http://donahue.com/resources/publications/copyrights-registered-u-s/
Go Habs + Leafs!
If you're here, you're probably a photographer. That being the case, I'll have to agree with you, at least in the case of one photographer - you're full of %$@^%$&%. Your generalizations about photographers are obnoxious and wrong. You really expecting a sympathetic audience for your drivel here?
Whoa...did you forget to take your meds??
The guy who, unprovoked, goes on a rant about how all "photographer's are full of %$@^%$&%" is the one who needs meds.
Leigh Miller, FYI: For 10+ years, the creative community has been pushing Congress to establish a small-claims-type copyright court. The CASE Act (“Copyright Alternative in Small-Claims Enforcement Act of 2019”) would establish a copyright tribunal which would hear low-dollar value copyright cases in an efficient, affordable, and expedited manner.
If you’re located in the US and want to support this legislation, visit the following link to automatically send your congressional representatives a form letter, encouraging them to pass the CASE Act (it’ll take two-minutes to fill out): https://www.ppa.com/smallclaims
Easiest solution is the most obvious: Change copyright law to reflect ownership the instant a person has begun the creation process and the copyright updates with each substantive alteration. No additional, superfluous registration needed.
This is how it should be. That it's not, is ridiculous!
The solution is to stop taking pictures of these people. Let them wither without support.
Celebrities? Oh, absolutely! I was just thinking of copyright in general
The copyright registration is retroactive by three months, so a photographer in the US can register a batch of images for copyright every three months and be fully covered. If the copyright for an image is infringed before the copyright for that image has been confirmed, the photographer should wait until it is confirmed before going to court--even if it means waiting months after the infringement occurred.
Technicalities. Seems like an oversight on the part of the photographer's attorneys.
There is certainly a problem with the timing of this case. The XClusive action was started after the USSC decision making registration mandatory before beginning a suit. I'm not sure how XClusive could've known that the law would change. Perhaps the lawyers didn't argue that point. In law school, it was a constant refrain that bad lawyers and bad arguments make bad law.
HOWEVER, their lawyers should have brought a motion to amend to account for the change in timing / steps.
I'd assume that there'd be negligence suit any moment.
Though the headline blares that she "won" the case, that is not correct. It was dismissed (no loss, no win) on a technicality because the plaintiff didn't dot all the is and cross all the ts.
If they've a mind to, the plaintiff could do the proper dotting and crossing, take another run at it, and they would probably win it.
Just saying.
Another day, another clickbait title by Jack Alexander.
Exactly why photographers are not lawyers, you cannot even summarize the case correctly. It was a technically and the photographer can sue after the copyright is approved. It was a SCOTUS decision a while back.
If it actually went to trial and a judge or jury ruled in her favor, then you can say it was a win.
The photographers Attorney didn't determine that a Copyright Certificate was needed before filing the lawsuit? I am hoping that a new lawsuit is filed as soon as the document is received, I believe my last filing took about six months.
The action was commenced before the USSC decision making that technicality a requirement. Odd. Still, I don't see why they didn't file a motion to amend the claim. Negligence me thinks.
The decision that copyright registrations need to be completed before filing suit is a recent decision.
This case isn't the loss that the author is making it out to be. The registration is still pending. The photographer can refile after the certificate is issued. That doesn't mean the photographer can't restrict Gigi's use.
All he needs to do is have his attorney send a cease and desist letter to her demanding that she stop all use. If she refuses and continues use, he can sue her for violating a legal demand. AFTER the registration certificate arrives, he can sue her for infringement then and use her ignoring the cease and desist letter as grounds for willful infringement. PLUS he can go after her in state court for her ignoring the cease and desist order and use the copyright ruling as evidentiary for that case.
So she's doubly screwed now, it will just take a bit longer. THIS stuff is why photographers need to register EVERY set AS they create them and not wait three months for group registrations.