Well-known model Gigi Hadid and the agency that she represents, IMG Models, have been sued by a photographer over an Instagram post that Hadid posted of herself, which had been taken by the plaintiff.

In a copyright infringement lawsuit against Hadid and the agency, the suit alleges that photographer Peter Cepeda took a photograph of Hadid that has gone viral due to its posting on Hadid’s Instagram and Twitter; Hadid has refused to take down the photograph despite numerous requests from the plaintiff.

Cepeda claims he owns exclusive rights to the photograph that he took of Hadid on July 11, 2016 in New York City and that a federal registration of the photograph is currently pending.  In his suit, Cepeda takes issue with Hadid and her agency’s posting of the photograph because the social media posts have removed Cepeda’s watermark and fail to credit him as the photographer.

As such, Cepeda further alleges that Hadid and the agency’s unauthorized editing of his work is illegal under the Digital Millennium Copyright Act (“DMCA”) because it violated the integrity of his work by removing the watermark, which serves as a copyright-identifying source of information for the photograph.

While the DMCA has long included a provision that prohibits the removal of copyright-identifying sources, also referred to as copyright management information, only recently have plaintiffs begun to include this claim as an additional violation in plaintiff suits.

Cepeda alleges that he has been damaged by Hadid’s post because he holds exclusive licensing rights to the photograph, which he has not licensed to Hadid or her agency, and these rights are infringed upon by Hadid’s social media posts.  Cepeda claims that Hadid’s use of the photograph without his approval damages his ability to market the work and realize profits as Hadid has circulated his work without his consent.  In his suit, Cepeda is seeking actual damages as well as any profits that have been realized by Hadid and/or IMG Models by their use of the work.

In the wake of the rise of social media, such lawsuits against celebrities who have major followings on platforms such as Twitter or Instagram is not uncommon.  Celebrities such as the Kardashians have also found themselves at the center of lawsuits after posting photographs of themselves on their social media accounts.  Because the public and the celebrities alike often do not understand that the copyright belongs to the photographer, and not the subject, they may often run afoul of copyright law unintentionally.  And as it is common for the social media accounts of public figures and celebrities to be run by management or public relations teams, such lawsuits will most likely continue to occur.

In this case, however, an additional wrinkle arises from the fact that Cepeda’s watermark was purposefully edited out of the photograph.  While crediting the photographer as the source of the photograph is often not enough to avoid a claim of copyright infringement, removal of copyright management information raises the question of whether the copyright infringement was willful.  As most experienced counsel knows, proving willful copyright infringement will significantly increase the amount of damages recovered.

As such, brand owners, managers, celebrities, and companies alike should always consult experienced intellectual property counsel before posting copyrighted material on social media accounts.  Attorneys can provide succinct advice and educate clients on proper social media use of copyrighted works to avoid costly lawsuits over such use.

For more information on this topic, please visit our Copyright Litigation service page, which is part of our IP & Business Litigation Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the litigation law firm and its litigation attorneys may be found at www.klemchuk.com.

Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.


Also published on Medium.