From The IPKat:
Social media is a real spanner in the IP works, since it’s all about sharing content that IP is in the business of restricting. Social media platforms were crowned a haven for counterfeited goods by the UK IPO report Share and Share Alike, and they can also cause havoc for copyright holders as their content is shared without permission, not to mention the dubious terms and conditions! Recently GiGi Hadid has found herself in the hot seat for sharing images on Instagram, and not for the first time. Here’s the latest:
GiGi Hadid (Jelena Noura Hadid) is an American fashion model, named International Model of the Year by British Fashion Council. She has modeled for Versace, Chanel, Elie Saab, Fendi, Marc Jacobs, Anna Sui, Miu Miu, Balmain, Diane Von Furstenberg, Tommy Hilfiger, Fenty, Puma, Isabel Marant, and Giambattista Valli and has appeared on the covers of magazines such as Vogue.
Hadid manages her own Instagram account, which has over 44 million followers worldwide. On 12 October 2018, she posted a picture of herself to her Instagram account. The copyright holder of the image in question, which was captured on October 11, 2018 in New York City is Xclusive (a photo agency that represents over 40 photographers worldwide).
Xclusive have now brought a civil complaint against Hadid in the United States District Court for the Eastern District of New York seeking a trial by jury and damages for copyright infringement.
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In the claim Xclusive argue that Hadid’s Instagram account includes at least fifty (50) examples of uncredited photographs of Hadid in public, at press events, or on the runway, posted by Hadid without license or permission from the copyright holder. The claim states that Xclusive believes these acts of infringement are willful and intentional, in disregard of and with indifference to the rights of copyright holders.
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A similar situation occurred when Khloe Kardashian posted a photo of herself on her Instagram, also owned by Xposure Photos in 2017. Xposure filed the complaint in the U.S. District Court for the Central District of California, stating that posted the photograph along with the caption ‘going for a meal at David Grutman’s Miami restaurant, Komodo’ in September 2014, without a licence from the copyright holder. The Photograph was taken by Manual Munoz and licensed for limited use to The Daily Mail, which published it on 13th September 2016 together with a copyright notice and watermark. The following day the photo was posted on Kardashian’s Instagram account, with the watermark removed. Similarly, according to a March 2018 mediation report, the case was “completely settled.”
These previous cases didn’t deter Hadid from continuing to post photos of herself on her social media platforms. She even posted this argument about the situation on her Instagram: “Yesterday I heard from my management that I am being ‘legally pursued’ for my last (now deleted) Instagram post…sue me for a photo I FOUND ON TWITTER (with no photographer name on the image) for a photo he has already been paid for…”
She goes on to say:
To all the fan accounts being taken down and being sued themselves…to the photographers… demanding money from young fans…is just wrong.
This raises the broader issues of the confusion and tension of copyright uses on social media, celebrities right to control their image as well as the classic tensions between paparazzi and privacy. Whilst the US recognises some personality rights, consent is not required for the “use of a name, voice, signature, photograph or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign”. Some might consider it a fair trade-off for living the life of a celebrity. In the social media and influencer age, it is more common and lucrative than ever to be using one’s own image for remuneration.
Link to the rest at TheIPKat
As the OP indicates, there is a tension between what might formerly have been called “free publicity” for a celebrity and the money a celebrity (or other dedicated self-promoter) can earn directly from their own social media account.
If you search Google for How to Make Money on Instagram, you will discover that there are many ways to do so.
Here’s a summary:
1. Become an influencer and make money from sponsored posts.
With your influencer status, you can propose to brands to help to promote them in your posts. An influencer is someone who has built a reputation by doing and sharing things online. They have a good following and they are able to convince their audiences about trends because of the level of trust they have built with their online presence.
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2. Become an affiliate and make money selling other people’s products.
You can sell other people’s products and receive a cut. Many brands sell their products through affiliate programs. There are many people that make money from Instagram this way.
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3. Sell poster photos and other virtual products.
Instagram is all about visual content. Photogenic products would sell well on Instagram. You can sell poster photos, paintings, drawings, animations, videos, and other image or video-based virtual products. On each post, refer readers to visit the link in your bio. This is another popular way that people make money from Instagram.
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4. Sell your own physical products.
You can sell any physical product that you produce yourself or purchase from suppliers. This conventional ecommerce retailing usually requires stocking some inventory, meaning you’d need to spend some startup capital to stock some products.
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5. Sell dropshipped products.
Dropshipping is a business model which you can use to run your store without ever holding any inventory. Once you’ve made a sale your supplier will ship your products from their warehouse, straight to your customer’s doorstep. You’ll never need to worry about storing, packaging, or shipping your products.
Link to the rest at Oberlo
PG is entirely unfamiliar with GiGi Hadid, but notes that some public personalities are known for their talents in other fields, often in the performing arts, while other public personalities are known because they are famous for being known (see almost anyone named Kardashian, for example).
How much can you earn from Instagram?
This question was posted on Quora and the responses from answers receiving the most upvotes include the following:
The best social media influencers can earn up to tens of thousands for a single sponsored post. For an instance, if an influence has a few million followers it is most likely that they earn up to 10K per a post. If the following is something under a million, the estimated numbers are between $500-$1500 per a sponsored post.
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The market rate has settled at approximately $10 per CPM (cost per thousand impressions). The standard assumption is that only 10% of followers see any given post. That means that if you have 50K followers, you will have 5K impressions (50K x 10%) – or be paid $1 per 1,000 followers – and make a total of $50 per post. However, these rates are more for raw numbers of followers. Popular influencers with online communities that put their name and reputation behind something can charge a premium for it.
I have experienced a wide range, but as mentioned above, the average influencer with a blog and/or any sort of loyal following makes 10x this amount per post. Basically, they get the same ~$10 CPM, but without the 10% adjustment. You can expect to make $500 for a post if you have 50K followers. You can easily make $10,000 if you have 1 million followers.
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Gabrielle Epstein, 21, said she earns more from posting a selfie than she would working four days as a regular model. The 21-year old has almost 800,000 followers on the social media site, and cannily mixes her feed with fun-loving pics of her everyday life alongside product placements.Each post can generate up to 25,000 likes, with companies keen to piggy back on Gabrielle’s popularity by getting her to endorse their product.
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I know plenty of influencers who hit 100K followers and then quit their jobs.
We’re looking at conflicting legal interests here.
A photographer is making creative work in which he/she has an interest protected by copyright law in the same general manner as the author of a novel or short story or the artist who creates a painting. The individual who creates the work is, generally speaking, the owner of the work. The creator has the exclusive right to control the use of the work, enter into agreements that permit others to use the work, etc.
On the other hand, there is a difference between taking a photo of a sunset at the beach and taking a photo of an identifiable person. The sunset has no legal rights, but a person may.
From Wikimedia Commons:
When dealing with photographs of people, we are required to consider the legal rights of the subject and the ethics of publishing the photo in addition to the concerns of the photographer and owner of the image. These former issues are quite distinct from the copyright status of the image and may restrict or impose obligations on those taking, uploading or reusing a photograph. A Creative Commons licence or public domain status, for example, means that the photographer (or other owner) has waived or lost certain rights and that their permission to use the image is not required. However, the photographer is not able to remove any rights belonging to the subject of the photograph.
The subject’s consent is usually needed for publishing a photograph of an identifiable individual taken in a private place, and Commons expects this even if local laws do not require it. In many countries (especially English-speaking ones) the subject’s consent is not usually needed for publishing a straightforward photograph of an identifiable individual taken in a public place. However, the term “publishing” should not be construed to include commercial use, as consent is usually required in these situations. Moreover, the country specific consent requirements vary. Many factors can determine whether and what degree of consent is required.
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There are two forms of personality rights that govern the taking, hosting and use of photographs where the subject is a living person: the right of publicity and the right of privacy. Care should also be taken not to defame the subject.
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The right of publicity is the right to control the commercial use of one’s likeness. The most obvious example of this is in advertising (and it applies whether or not the advertisement itself is for commercial purposes). This right concerns the subject of the photograph and is distinct from the photographer’s copyright license which may impose its own terms or grant freedoms regarding commercial reuse.
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The right of privacy is the right to be left alone and not to be made the subject of public scrutiny without consent. The right to privacy is enshrined in several international laws though the details with regard to photographs vary from country to country. Images must not unreasonably intrude into the subject’s private or family life.
The law on privacy concerning photographs can be crudely divided into whether the photograph was taken in a private or public place. A private place is somewhere the subject has a reasonable expectation of privacy while a public place is somewhere where the subject has no such expectation – the terms are unrelated to whether the land is privately or publicly owned. For example, a tent on a beach is a private place on public land and a concert is a public place on private property. A place may be publicly accessible but still retain an expectation of privacy concerning photography, for example a hospital ward during visiting hours. Whether the place is private or not may also depend on the situation at the time: for example that same hospital ward would have been a public place during a tour before it opens.
Link to the rest at Wikimedia Commons
In a number of countries, consent is needed for just taking a photograph of one or more identifiable people, not to mention publishing it and/or using it commercially even if the person is in a public place. Here’s a country-specific list of consent requirements from Wikimedia Commons. PG notes that, in the United States, some individual states have state-specific laws that apply to photographers. See, for example, Texas Penal Code § 21.15. Invasive Visual Recording.
In the United States, most of the laws relating to taking photos of others without the express consent of the subject of the photos were established long before the existence of Instagram and cell phone cameras.
In the days when quality photos were made by professional photographers with Graflex cameras and movie stars were mostly happy when their pictures appeared in magazines or newspapers because it was good for ticket sales, the balancing of interests between the photographer creating a photo and the subject of that photo was less complex than it is today.
Back to the OP, it is unlikely that GiGi Hadid gave her express consent for the photographer to create the original photo and she certainly did not provide explicit consent for Xclusive, the photo agency, to have the exclusive right to license her image in the photo to others.
Absent Ms. Hadid’s 44 million Instagram followers, a photo of her would be much less valuable as content for The Daily Mail, so the likelihood of either the photographer or the photo agency receiving as much of a license fee would be much lower.
Indeed, Ms. Hadid almost certainly earns a larger income from Instagram, based upon her personality (and valuable personality rights licenses) than she does from being a fashion model, so preventing her from using the photo deprives her of the type of material that generates most of her income without her express consent. Under the arguments made by Xclusive, only the photographer is entitled to reap any income from Ms. Hadid’s image.
My sympathy meter hasn’t budged off “zero” yet…
For a model, copyright is their part of their *profession*. Even if they have an agent or manager taking care of the details for them, they can’t believably make the claim that they didn’t understand the link between “copyright” and “and then I get paid.”
I’d be down into negative sympathy if I took into account that she could have as many pictures as she wanted taken and photoshopped for a trivial amount of time and expense, and would own them 100%.
Thanks for the detailed post, PG.
Interesting questions of ownership and permissions. And they leave me wondering about some of the photos taken and sold by paparazzi who stalk people in vulnerable conditions and sell those.
I started reading your post feeling bad for the rights holder to the photos posted by the model on her Instagram site – and ended up feeling she has a point when you say it is almost certain she didn’t give consent to the photo agency having an exclusive right to publish her image.
And wondering where the suit will end.
Her agent no doubt told her to sign the contract – so they could collect their share of it … (or she signed because the money was too good to worry what the words in the contract might have said.)
When you aren’t paying for something ‘you’ are the product …