Gigi Hadid Wants To Change Copyright Law And She Has A Point
This might not be how copyright law works, but maybe copyright law isn't working right now.
An image where Hadid chose the timing, lighting, wardrobe, and pose… but we’re paying Getty instead. (Photo by Marc Piasecki/WireImage)
The Verge has a write-up on model Gigi Hadid’s current legal battles with the dismissive headline, “Gigi Hadid wants to rewrite copyright law around her Instagram account.” And while that’s technically accurate, it’s not really fair to the underlying argument Hadid and her lawyers —- led by John Quinn of Kaplan Hecker & Fink LLP —- are making, which is that America’s intellectual property laws were woefully unsuited to the modern world, and something needs to change fast.
This is a legal regime that supercharges patent and copyright trolls and while every legal observer bemoans the trolling culture, few are willing to stand up and demand concrete legal changes to fix it. Apparently, we need to rely on Gigi Hadid to handle that for us which — no offense to Gigi — should really embarrass every academic, jurist, and legislator.
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At issue is an Instagram photo Hadid posted of herself. One would think that posting pictures of yourself is entirely fair game (or fair use as the case may be) because this is basically the language of all online communication these days. But because Hadid is a celebrity instead of your cousin, she got a shakedown request from an agency demanding payment for infringing the copyright, claiming — without much evidence — that it’s now the owner of the copyright of the paparazzo who took the picture.
There’s an argument over whether or not the copyright has been properly registered and whether or not this agency actually has an assignment to pursue this claim, but let’s push all that aside and focus on Hadid’s fair use arguments because that’s the source of the controversy here.
The memorandum of support says Hadid didn’t infringe on any copyright “because Ms. Hadid posed for the camera and thus herself contributed many of the elements that the copyright law seeks to protect.” She, the memorandum states, creative directed the photograph, not the photographer who captured her on the streets of New York City. (The photo has since been deleted from Hadid’s Instagram, but it shows Hadid standing on a street smiling in a denim outfit.)
The media coverage kind of scoffs at that, but isn’t it safe to say that Hadid provided value to the work by posing for it instead of storming past in a blur? That may not be enough to make her the actual “creative director” of the portrait — though one imagines that a professional model can frame a better picture than a guy with a zoom and a lot of free time — but it at least complicates the idea that this “work” is the exclusive creation of the photographer. There’s no real provision for this in the existing copyright regime — though Hadid does cite cases where “posing” could be deemed joint authorship — but a system that allows someone to profit off of a model’s skill without even allowing the model a limited license to share the picture on her social media cannot be the right balance of the equities. The concept that it even might be is a sign of how thoroughly broken this system is right now.
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Isn’t there something about fair use that says non-commercial use gets leeway? Absolutely there is! But the agency offers the convoluted argument that Hadid posting the photo to her feed constituted a commercial use even though she sells no ads on her feed because everything a model does is implicitly commercial. But if her mere appearance is indirectly commercial, isn’t the photographer straight up stealing from her when he takes her picture? That doesn’t seem like a thread that the paparazzi would want to pull but it’s one that we should consider when we ponder how intellectual property law should work ideally.
The second factor of fair use grants leeway when the work isn’t particularly creative. From the agency’s opposition memo:
It is not just a mere snapshot of an individual on a street corner taken on a cellphone; the Photograph in this case is a highly creative work, involving a number of creative choices including timing, lighting, angle, composition, and others.
Timing? The photographer didn’t choose when Hadid would be walking by. The only thing that arguably transformed this into a carefully constructed glamor shot was Hadid deciding to stop and pose for it, bringing us full circle to the “creative director” argument above that seemed a little kooky until you started reading more of these arguments, didn’t it?
Concerning Hadid’s assertion that she somehow maintains joint copyright in the Photograph because she noticed the photographer and smiled at the moment the photographer chose to snap the shutter is preposterous. Ms. Hadid is as much a joint copyright holder in the Photograph as the subject of a biography is joint copyright holder to the words used by the author to describe her life.
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Actually, these are more like the rights of the subject of a biography being a joint copyright holder with their ghost writer.
Frankly, the best argument that the agency makes is that Instagram will promote “sharing” that will obviate the need for anyone to attain a license to the work, which then robs the photographer of his livelihood. That’s fair, but at a certain point intellectual property law is about promoting progress and if our laws are inflexibly bound to protecting the market for running down Princess Di instead of the market for a free and open exchange of images through a social media platform then we’re basically protecting the whalers at the expense of electricity.
In the end, this case may or may not be a winner for Hadid but she’s making some strong points about the fundamental unfairness of the system that too many lawyers and academics uncritically defend. It’s not unlike that abominable “Tom Brady” decision that threw a wrench on the server test, we’re seeing the creaks in an aging regime that barely functioned when Sonny Bono took a hatchet to it in the 90s. It’s positively not built to deal with the modern advancements.
And when something’s out of step with modernity, the right answer is almost never to pull back the reins and stick with the outmoded system.
(Check out the briefs on the next page…)
Gigi Hadid wants to rewrite copyright law around her Instagram account [The Verge]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
