A photographer has brought a lawsuit against the model, actress, and author, Emily Ratajkowski, over a photo she shared on her Instagram story. Robert O’Neil sued Ratajkowski for copyright infringement after she shared a photo that he took of her. Ratajkowski contended that her use of the image constituted ‘fair use’, and that the photo did not have valid copyright protection. A private settlement was reached on 13 April, and Judge, Analisa Torres closed the case on that basis.

Both Ratajkowski and O’Neil had previously applied for summary judgment in September 2021 and what is known as a “split opinion” was handed down by the judge, who found that both motions were granted in part and denied in part. Ratajkowski argued, amongst other things, that in placing the words “mood forever” on the photograph, she had made ‘commentary and criticism’ of the ‘aggressive and harassing practice of paparazzi constantly following her’. The court concluded that there was a ‘genuine issue of material fact’ regarding whether Ratajkowski’s use of the work was transformative. Commenting that:

‘a reasonable observer could conclude the Instagram Photograph merely showcases Ratajkoswski’s clothes, location and post at that time – the same purpose, effectively, as the Photograph. On the other hand, it is possible a reasonable observer could also conclude that… the Instagram Photograph instead conveyed that Ratajkowski’s “mood forever” was her attempt to hide from the encouraging eyes of the paparazzi – a commentary on the Photograph.’

Traditionally, the courts have found paparazzi photographs to be ‘original’ due to creative choices made including the lighting, angle and focus of shots. In this case, in line with this this school of thought, the judge found that the photograph in question met the ‘extremely low’ standard for originality required for copyright protection. When considering the fair use defence, the court commented that Ratajkowski used ‘a greater portion of the photograph than was necessary for her purpose’, and that the photo was posted on an Instagram Story which was deleted after 24 hours, and it was therefore ‘much less…likely that someone might take the Photograph from the Instagram Account rather than licensing it from [O’Neil].’ This was the first time that the US courts considered the difference between posting on an Instagram Story, and the main Instagram feed.

Claims of this nature are not uncommon. O’Neil has previously brought actions against several celebrities for posting his photos on social media, including against Australian actor, Liam Hemsworth, and American supermodel, Gigi Hadid. Justin Bieber is facing a similar copyright infringement suit in which photographer, Josiah Kamau, alleges that Bieber posted Kamau’s photograph of himself and his wife, Hailey, crossing a road, to his Instagram account. Kamau has requested a jury trial. zoom-in will report on any developments.