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The real cost of posting a photo on Instagram…of yourself!

American fashion model, Gigi Hadid is reportedly facing a court claim for posting a photograph on Instagram of... herself!

This news may come as a surprise to her devoted fans (Gigi boasts 46.1m followers on Instagram alone). However, copyright is one of the principal intellectual property rights and it is a key right within the media and entertainment industries.

Gigi is an American fashion model - named ‘International Model of the Year’ by British Fashion Council. She has modelled for the major fashion houses of Chanel, Versace and Balmain, amongst many others. On 12 October 2018, she posted a picture of herself on her personal Instagram account.  Xclusive - a New York City based photo agency, claim to be the copyright owner of the image in question, taken on 11 October 2018 in New York City.

It has been reported that Xclusive have now brought a civil complaint against Gigi in the United States District Court for the Eastern District of New York. That claim will, of course, be subject to the law of that jurisdiction and the outcome of the claim is yet to be determined. However, what would be the outcome if similar events unfolded on this side of the Pond? We examine below what would be considered by the Courts of England and Wales.

In English law, photographs are protected as ‘artistic works’ under s4 of the Copyright, Designs and Patents Act 1988, as amended (“the Act”). The basic rule is that the creator (who is known for copyright purposes as the author) of the work will be the owner of copyright.

The main exception to the general rule that the author is the owner of copyright is where the photograph is created by an employee in the course of his employment. In that case, the employer will be the first owner of copyright in the work, unless there is an agreement between the employer and employee to the contrary.

Last October, Gigi posted on her personal Instagram account stating:

 “Yesterday I heard from my management that I am being ‘legally pursued’ for my last (now deleted) Instagram post...sue me for a photo I FOUND ON TWITTER (with no photographer name on the image) for a photo he has already been paid for..."

Again, in English law, an infringement of copyright can be committed unintentionally. There is no requirement for a claimant to prove that the infringement was deliberate or that the defendant was reckless or negligent.  However, such factors can be relevant if the Court awards damages.

If events unfurled in England and Gigi published the photograph without the copyright holder’s consent, she could fall foul of English copyright law as this would amount to an ‘infringing act’ i.e. ‘copying’ and ‘communicating the work to the public’.

The English Courts are able to award a number of remedies to a successful Claimant who has complained about copyright infringement. These remedies include:

  • An order preventing the Defendant from using the infringing work and/or requiring the Defendant to destroy or return copies of the work
  • Compensation
  • An account of any net profit the Defendant has made from use of the infringing work

The case against Gigi remains to be determined by the U.S. District Court.  Her lawyers may be able to raise defences to the copyright claim.  We will watch proceedings with interest.

JMW’s Media team are regularly instructed in relation to copyright infringement. If you would like to discuss a legal issue in confidence, please contact one of the team on 0345 872 6666.

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