False Start for Paparazzi in Copyright Suit

Xclusive-Lee Inc. v. Hadid,
Case Number 1:19-cv-00520,
United States District Court for the Eastern District of New York

A copyright infringement lawsuit against supermodel Gigi Hadid by the paparazzi group Xclusive-Lee Inc. was recently dismissed because the plaintiff failed to formally register a copyright for the allegedly infringed photograph.

Hadid was sued by Xclusive-Lee Inc. (“Xclusive”) for posting a photo on Instagram which was allegedly originally taken by a member of Xclusive’s paparazzi. The suit alleged that Hadid posted the photograph to Instagram without a license or permission from Xclusive.

Hadid posted the allegedly infringing photo photo online in October 2018, but subsequently deleted the photo. Xclusive’s complaint against Hadid alleged that she had used the photo without permission and had copied it to her Instagram page.

The District Court granted Hadid’s motion to dismiss the suit after it was determined that Xclusive had applied for, but had not actually been granted, a copyright registration for the photo. According to the Court, an application for a copyright alone is not enough to meet the Supreme Court standard set forth in Fourth Estate Public Benefit Corp. v. Wall-Street.com, 139 S.Ct. 881 (2019), which states that “copyright owners can’t sue for infringement until the work at issue is formally registered by the U.S. Copyright Office.” Xclusive was unsuccessful in arguing that, because Fourth Estate was decided after Xclusive filed its complaint, Fourth Estate should not apply to the case.

This case is similar to the many cases filed against Epic Games, Inc. relating to in-game dances in the popular video game Fortnite. Like Xclusive’s case, the many Fortnite dance lawsuits were dismissed because the plaintiffs failed to register their copyright. In the case of Fortnite, it appears that the various plaintiffs plan to refile suits if and when they receive copyright protection for their dances. It is unclear whether Xclusive has similar plans.