A copyright case has been settled between Emily Ratajkowski and a photographer, which the actress used for her Instagram Story that could have had far-reaching implications for the fair use of the images.
US District Judge Annalisa Torres closed the case Wednesday after telling her that the two sides had "reached a settlement in principle," according to court filings. Terms of the deal were not disclosed.
A few years ago, paparazzi started suing celebrities for posting their photos on social media without permission. Stars, including Khloe Kardashian, Liam Hemsworth and Gigi Hadid, settled cases with unknown amounts.
Instead, Ratajkowski chose to fight a lawsuit filed by Robert O'Neill in 2019 after she shared a photo he took of her outside a Manhattan flower shop on her Instagram Story, which automatically deletes posts after 24 hours. She claimed that O'Neill lacked valid copyrights and that her use of the image constituted an acceptable use of the image.
“The protection afforded by copyright law is only available to the party 'who actually shaped the image by putting people in their positions and arranging where people should be,'” she wrote in motion for an urgent ruling. “This is true even if the plaintiff has a registered copyright ."
Under copyright law, images do not qualify for protection if they lack "artistic merit" and the content of the images does not "give the court any reason to believe that any 'creative spark' was required to produce them". Purely descriptive images, which are defined as simply taking things "as is", are not similarly granted copyright protection.
Ratajkowski argued that O'Neill simply took a picture as it appeared on the street.
Although Torres found the image to meet the "extremely low" standard of authenticity, she stopped short of judging whether Ratajkowski's use of the image on Instagram Story constituted fair use.
The judge said the actresses altering the image by putting the words "forever mood" on the image may be a diversionary use protecting her from a copyright claim.
"A reasonable observer can conclude that the Instagram photo only shows Ratajkowski's clothing, position, and standing at the time - the same purpose, effectively, as the photo," Torres wrote. On the other hand, it would be possible for any reasonable observer to conclude that, looking at the flowers covering Ratajkowski's face and body and the text 'Forever Mood', the Instagram photo instead conveyed that 'Ratajkowski's Forever Mood' was her attempt to hide from the intrusive eyes of the paparazzi - Comment on the photo.
In what was the first judgment to consider the impact of a Story post on Instagram compared to one on the main feed, Torres also found that the length of availability of the offending image mattered. “If an Instagram photo appears for only twenty-four hours, it is less likely for someone to take the photo from the Instagram account than to authorize it from the plaintiff, compared to the same risk if the Instagram photo is permanently pinned to the Instagram account,” the request read.
Lawyers representing O'Neill and Ratajkowski did not respond to requests for comment.
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