In the midst of the pandemic, with people locked down in their homes – lawyers, included, the number of lawsuits filed by paparazzi photographers and/or their agencies against the subjects of their shots seemed to fall compared to years prior. But with people resuming their regular activities as pandemic conditions increasingly subside, the number of copyright lawsuits being filed against famous faces appears to be rising. Kicking off the once-again-growing string of cases: Integral Images, which filed a copyright infringement suit filed against Dua Lipa after the singer posted a photo of herself standing in the airport back in 2019.
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.”
The case waged against Lipa – in which Integral Images is seeking an award of actual damages (if it can show any) or alternatively, $150,000 in statutory damages, as well as injunctive relief – has been followed by a number of other suits filed by the same counsel, attorney Craig B. Sanders, in the U.S. District Court for the Central District of California against various stars.
On Thursday, photographer Damion Reid filed a copyright infringement suit against Gabrielle Union-Wade for posting a photo that he took of actress Zazie Beetz on Instagram and Facebook back in May 2018. That same day, John Carta named Kaley Cuoco in a copyright complaint, and Timur Mishiev filed suit against Katharine McPhee Foster. And still yet, 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.” In other words, Mateo essentially argues that by posting the images on her account, Ratajkowski negatively impacted his ability to license those images to others, such as media outlets.
Just as in the other cases, the photographer is seeking monetary damages, and injunctive relief in order to enjoin Ratajkowski “from any infringing use of any of [his] works.”
Fair Use?
The cases are the latest in a long line of copyright suits initiated against celebrities and fashion brands, among others, for posting copyright-protected imagery without the authorization of the copyright-holding photographers and/or the agencies that they have licensed their rights to. One of the cases that predates the recent flurry was filed against Ratajkowski in a New York federal court in October 2019 after she posted a paparazzi photo of herself to her Instagram story. In that case, one that Ratajkowski’s counsel has called a “bad faith” quest for an “unsubstantiated payday,” Robert O’Neil claims that Ratajkowski ran afoul of federal copyright law when she posted one of his photos – of herself – to her Instagram account without licensing it or receiving his permission to use it.
O’Neil asserts that Ratajkowski’s Instagram post – which depicted her walking down the street with a flower arrangement covering her face and the caption “mood forever” – is a violation of his exclusive rights as the copyright holder, including his exclusive right to publicly display or authorize others to display the photo.
In response to O’Neil’s complaint, counsel for Ratajkowski has sought to have the case decided early and in her favor, arguing in a summary judgment motion in September 2020 that O’Neil failed to make his case on multiple fronts. In a subsequent filing in October 2020, Ratajkowski’s counsel asserts that the paparazzi photographer’s cross-motion for summary judgment should be denied, and Ratajkowski’s motion for summary judgment – which would decide the case ahead of (and in lieu of) a trial as a result of a lack of disputed facts – should be granted. Part of the basis for Ratajkowski’s motion? Ratajkowski’s counsel argues that her use of the image amounts to fair use, “as it created a new meaning and purpose by adding a caption commenting on Ms. Ratajkowski’s experience with constant paparazzi attention,” and it was “non-commercial” since the model “did not profit from the post in any way.”
Among other things, Ratajkowski asserts that “rather than merely documenting her location or her clothing,” the purpose of her Instagram post “was to comment on the way [she] is constantly hounded by paparazzi, and how not even shielding her face will stop them from trying to exploit her image.” The comment, “mood forever,” according to Ratajkowski’s filing, “is clearly a comment on how inappropriate it was for O’Neil to photographer her (and attempt to license the resulting photo) when she had covered her face as a signal that she did not consent to be photographed.”
That case is currently pending before the U.S. District Court for the Southern District of New York, with the parties awaiting the court’s decision on their dueling motions.
UPDATED (Jan. 14, 2022): A California federal court has tossed out the case that Javier Mateo filed against Emily Ratajkowski on the heels of counsel for the photographer filing a notice of settlement with the court on January 13. The terms of the settlement are confidential.
The cases are Integral Images v. Dua Lipa, 2:21-cv-05470 (C.D.Cal.) and Javier Mateo v. Emily Ratajkowski, 2:21-cv-05684 (C.D.Cal.).
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