image: Guess
After New York-based brand Monse landed on the receiving end of a copyright infringement lawsuit for posting a photo of Jennifer Lopez in one of its dresses on Instagram in July and on the heels of Versace being sued before that for posting a photo on its account of Lopez wearing an all-over Versace print look to MTV’s Video Music Awards last year, the singer-slash-actress is now facing an infringement suit of her own after she posted a photo of herself and Alex Rodriguez on her heavily-followed Instagram account.
According to the complaint that Splash News filed in a California federal court last week, the Los Angeles-headquartered paparazzi photo agency is “the owner and exclusive copyright holder of a photographic image” captured by photographer Elder Ordonez in November 2017, which depicts “Lopez holding hands with her boyfriend Alex Rodriguez while out for breakfast in New York City.”
On the same day as Ordonez took the photo of Lopez and Rodriguez and licensed it to highly-visited news site the Daily Mail, Lopez allegedly “copied the photograph and distributed it on Instagram, via [a Story on] the @jlo account” without licensing the photo from Splash News or seeking permission to post it, thereby, running afoul of Splash News’ exclusive right as the copyright holder of the image to copy/display it and/or authorize others to do so.
The lawsuit is the latest in a swiftly growing number of copyright infringement lawsuits being filed – often by a small handful of the same lawyers – against celebrities and fashion brands, alike, over their use of others’ copyright-protected imagery on social media. This string of cases – which has seen Khloe Kardashian, Ariana Grande, and Gigi Hadid, among others, sued for copyright infringement – has raised questions about the nature of ownership of intellectual property in the sharing-centric social media ecosystem and about the level of damage that actually comes from such infringement with attorneys.
image via complaint
In the complaint, Splash News argues that it has “suffered damages as a result of [Lopez’s] unauthorized use of the photograph,” despite claims from some legal experts that the level of damage to photographers in such instances of infringement is markedly low in part because celebrities or brands posting such photos actually does little to prevent the photographers/photo agencies from selling the images to media outlets, and thus, earning revenue by way of licensing fees.
As counsel for Gigi Hadid argued in a since-settled suit, by “merely" reposting an image of herself to her Instagram account, the supermodel “made no effort to commercially exploit it,” making her use of the photo “different than the photographer’s purpose in taking the photograph, which was to commercially exploit Ms. Hadid’s popularity,” and therefore, Hadid did not impair the market for the image.
Counsel for Splash News argues to the contrary, claiming that the well-known photo agency and the photographer “stood to gain revenue from licensing the photograph.” However, Lopez’s “unauthorized use” of the image stands in the way of that and serves to “harm the existing and future market for the original photograph.” This is because her “Instagram post made the photograph immediately available to Lopez’s tens of millions followers and others, consumers of entertainment news—and especially news and images of Lopez herself, as evidenced by their status as followers of her—who would otherwise be interested in viewing licensed versions of the photograph in the magazines and newspapers that are [Splash News’] customers.”
The complaint goes on to address an additional point that has been raised in connection with such suits: the use at play – the posting of the image(s) to celebrities’ Instagram accounts – is not commercial in nature, and therefore, would more likely amount to fair use and not copyright infringement.
But that is not the case here, Splash News argues. In fact, the photo agency claims that Lopez’s “unauthorized use [of the phot] is expressly commercial in nature … [because] Lopez uses her Instagram feed for the purpose of promotion—specifically, to promote her business interests, products, and ventures; to promote and sell the products and services of others; to maintain and increase her visibility and desirability as an endorser, actress, model, and entertainment personality; and to promote her persona and celebrity status.”
“In short,” the Splash News claims, “every one of Lopez’s Instagram posts is fundamentally promoting something to her 93 million followers,” an assertion that closely mirrors one that the photo co. made in its currently-pending infringement suit against musician Nicki Minaj. In making such an argument, Splash News is preliminarily asserting that Lopez’s use of the image does not meet one of the key factors in a fair use argument, and such use should not be shielded from infringement liability. (It is worth noting that because fair use is an affirmative defense to copyright infringement, counsel for the defendant would be responsible for arguing in response to the plaintiff’s claims that such a defense applies in the case at hand; no such argument has been made – yet – by counsel for Lopez).
Splash News sets forth claims of copyright infringement in its complaint, which was filed by Los Angeles-based Perkowski Legal, PC, as opposed to New York-based Liebowitz ---, the latter of which has become synonymous with its filing of such lawsuits, and the budding rise of such lawsuits more generally. The photo agency is seeking “actual damages and all profits derived from the unauthorized use of [its] photograph or, where applicable and at [its] election, statutory damages” of up to $150,000 per infringement, whichever is greater.
*The case is Splash News and Picture Agency, LLC v. Lopez, 2:19-cv-08598 (C.D. Cal.).
