October 10, 2020

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

On September 18, 2020, the United States District Court Southern District of New York (the Court) granted a motion for partial summary judgment with respect to liability for copyright infringement in relation to street style photography.

During New York Fashion Week in February 2019, digital content creator and stylist Lin Niller Huynh wore New York-based brand Elie Tahari (the Defendant) while attending events. Street style photographer Mark Iantosca (the Plaintiff) captured images of Huynh, which were later shared on Elie Tahari's business social media accounts, crediting and tagging the photographer.

Three months later, Iantosca filed a lawsuit against Elie Tahari, arguing that the brand did not license the photo or receive permission to use it. The Plaintiff identified the copyright registration number of the photograph, alleging that the Defendant committed copyright infringement in violation of Sections 106 and 501 of the Copyright Act.

The Defendant challenged the Plaintiff’s claim arguing that Iantosca did not have a certificate of copyright registration for the Photograph when the Plaintiff filed the complaint. The Court held an oral argument on August 5, 2020, requesting that the United States Copyright Office produce certified deposit copies of the works on file under this copyright registration number, ultimately confirming that the Plaintiff does have a registered copyright for the photograph. The Defendant further argued, however, that it was permitted to use the photograph without a licence given that its use is either fair use, meets the standards for non-infringing de minimis use, and/or is not copyright infringement because the photograph depicts a model wearing its clothing and the photographer was properly credited.

However, the Court determined that the use of the photograph was a commercial use intended to sell its clothing, and that it did not add any "new insights and understandings for the enrichment of society". Additionally, given that the photo was reposted without being modified, the "amount and substantiality" of the use favours the photographer. The Court responded to Elie Tahari's argument that "reposting another’s picture has become commonplace on social media" by stating that no support was offered for this contention, and if it were credited, “would represent a seismic shift in copyright protection".

The Court also argued against the Defendant’s argument that “because the photograph depicts a model wearing its clothing and the photographer was properly credited, the act of reposting the photo was not copyright infringement”. The Court stated, “[The] Defendant has not pointed to any precedent supporting [these] theories […] Simply put, attribution is not a defense against copyright infringement”. The failure to properly attribute copyrighted material weights against fair use, but acknowledgment does not in itself excuse infringement. Referring back to the originality analysis of a copyrightable photograph, the Court further states that “an original copyrightable photograph rendition concerns not ‘what is depicted, but rather how it is depicted’ […] Here, the photograph’s originality is clearly exemplified through the angle of the photo, the lighting, the selected pose of the model, and other artistic choices”.

Given the Court's granting of motion for partial summary judgment with respect to liability for copyright infringement, the case will proceed to a determination of damages. This Opinion and Order of the Court is one of many that have arisen over the last several years with respect to street style photography, fashion brands, and influencers or models. On a broad level, it appears that courts have taken the conventional approach in assessing copyright infringement in favour of the photographer. However, there have been no shortage of "creative" arguments from brands and models alike, highlighting how the use of social media and influencer platforms has changed the way fair use and non-infringing de minimis use should be examined.