Jawad Elatab v Hesperios, 19 cv 9678 (ALC) (SDNY June 2, 2021)

I mean in the case. Of course it’s fair use here.

Defendant clothing company published plaintiff’s photo (left, above) of Bella Hadid, on its Instagram account with the caption:  “@Bellahadid in our Lou tank and Lou Bel skirt knit set in fawn brown (right, above). Coming soon for Fall, although available now in summer colours. .  .” Plaintiff sues for copyright infringement. Defendant moves to dismiss alleging fair use.

Noting that it is difficult for a defendant to establish the affirmative defense of fair use at the motion to dismiss stage (given that the defendant can only work with the facts contained in plaintiff’s complaint), but also noting that its not impossible to prevail at that state (given that the court could possibly determine that use was fair by merely looking at plaintiff’s work and defendant’s complained-of reproduction, as you can do in the side-by-side above (See what I did there?).

The court then proceeds to evaluate fair use:

  1. Nature of use: The posting of the photo did not alter the original message of the photo. There is no modification – nor invitation to defendant’s IG followers to provide commentary. “defendant has failed to demonstrate that its post was anything other than commercial use to advertise its clothing.”
  2. Nature of the work: The photo was a typical creative work entitled to (c) protection. No discussion in the decision where the photo was published if ever.
  3. Amount and substantiality used: Defendant argued it needed to copy the entire work to invite its members to comment – however there was no such invitation – merely an advertisement for the clothes.
  4. Potential Effect of the Use on the Market or Value: Defendants posting invades plaintiff’s statutory right to license.

So is it possible to reproduce a photo of a celebrity wearing your company’s clothes?

Text of Elatab v Hesperios fair use decision