How A Supermodel's Post Could Influence Copyright and Photo Law

So, you may have missed this lawsuit filed over the summer, Summer 2019, and it was an interesting one in the world of copyright and photo law. Gigi Hadid who, of course, is a famous supermodel, was sued for copyright infringement. And here a couple little details.

Background of the lawsuit

A paparazzi company filed the lawsuit and claimed copyright over a photograph of Hadid.

The photographer took the photo of her as she was exiting a building. Instead of hiding her face or running away, she smiled and posed and of course the cameras clicked away. Well, when she saw the photograph, she liked it, cropped it, posted it to her Instagram account, and, of course, that's what caused the copyright infringement allegations and lawsuit. She stopped and smiled and posed for this photo -- which is her profession. And then was sued for using it.

Well the judge threw out the lawsuit because you have to have a registered copyright in order to file a lawsuit, and the paparazzi company hadn't registered the photograph in time to file the lawsuit. (Silly mistake.)

How this situation could influence copyright and photo law

The question is this: Is it infringement for a professional model to post a photo of herself that she did not own where the photograph wasn't candid and she had actually participated in the creation of this photo?

Before the suit was dismissed, her lawyers alleged fair use and implied license. "Implied license" means that somehow, the photographer granted Hadid permission to use the photo because she participated in creating it. (That's a toughie.)

We won't know, of course, whether these arguments would pass muster in a lawsuit since the lawsuit was thrown out. But maybe another celebrity could make this argument. "Because the subject participated in creating this photo, there was some kind of joint-ownership or joint-creation by the celeb/subject. And, thus, no copyright infringement." Now that could really change copyright and photo law.

I want to be clear that I’m not talking about your ordinary session. (One with a couple or a family or children.) That’s different. What we’re talking about here is the context of photos taken in public, by paparazzi, of a celebrity who just happens to pose and, arguably, aid in the creation of photos.

The judge dismissed the case, so we'll never know what might've been. Still, it's interesting to think about what might happen in the future for a similar case under similar circumstances.