Is Reposting Another’s Photo of Your Own Product Copyright Infringement?

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Your company learns of a photo of a celebrity or some social media personality using your product or service. Can you just repost it on your business’ social media account? That can’t be copyright infringement, right? After all, it’s your own product or service that is the subject of the work! Well, if the decision out of a Federal district court in New York is any indication, companies reposting another’s copyrighted photo without express permission or license–even where the subject is clearly wearing or using the company’s designs–could be setting themselves up for costly copyright infringement liability.

Tahari: What can happen if you re-post or “share” a photo that’s not yours

In Iantosca v. Elie Tahari (1:2019cv04527 – Document 69 (S.D.N.Y. 2020)), Plaintiff Iantosca was a professional photographer who took a photo of (apparent) celebrity model and digital content creator Linh Niller wearing some of luxury clothing designer Tahari’s fashion designs.

Defendant Tahari proceeded to repost the photo onto Instagram, tagging both Niller and (oddly enough) the Plaintiff in the post. (I mean, why not also send a DM to him that says, “I’m ripping off your copyrighted work, cool?”). Needless to say, Defendant Tahari did not ask Plaintiff Iantosca’s permission or procure a license to use his photo.

Evidently, Iantosca was not cool with it, as he subsequently filed a complaint in the Southern District of New York against Tahari for the repost of the photo, alleging copyright infringement in violation of Sections of 106 and 501 of the Copyright Act, 17 U.S.C. § 101 et seq. Iantosca later filed for summary judgment against Tahari on the infringement claim, the ruling on which was the basis of the court decision.

In granting Plaintiff Iantosca’s motion for summary judgment, Federal District Court Judge Mary Kay Vyskocil explained that the facts in this case were largely uncontested, the parties having agreed that Plaintiff Iantosca took the photo in question, registered his copyright with the U.S. Copyright Office, and that Defendant Tahari had reposted it to her brand’s social media accounts.

Specifically, the court found that Plaintiff held a validly registered
copyright and that there was “no triable issue of fact as to whether Plaintiff has a valid copyright for the Photograph”.

More importantly, (for those of you who may be inclined to repost photos taken by a third-party depicting your product or services–and for which you don’t have permission or a license), the trial judge was not persuaded by Defendant Tahari’s claim of “fair use”, an affirmative defense to copyright infringement.

Can Re-posting or Sharing be “Fair Use”?

At least in Tahari, the judge didn’t think so. In dismantling Defendant Tahari’s “fair use” defense, the court pointed out that all four of the fair use factors outlined in Section 107 of the Copyright Act actually weighed in favor of Plaintiff Iantosca. Defendant’s repost of the photo was plainly for commercial purposes, as opposed to scholastic or, say, journalistic intent. Despite Defendant Tahari’s arguments otherwise, the court found Plaintiff’s work, a photograph of a model, typical of a creative work entitled to copyright protection.

In addition, Judge Vyskocil pointed to how Defendant Tahari had not simply reposted or used a small portion of the Plaintiff’s original work but, rather, had reposted the subject photograph in its entirety and without modification. Lastly, the court reasoned that Defendant’s unauthorized postings of the photo on their face invaded Plaintiff Iantosca’s right to license his copyrighted work to others for reproduction.

What about “De minimis use” or Giving Attribution?

Apart from the “fair use” defense, Defendant Tahari’s lawyers also made two other novel arguments—which I relate here not because they were well supported or reasoned but because many of you have no doubt heard (or even made) these arguments from your marketing teams and social media staff.

First, Defendant Tahari argued that the reposting of the photograph was merely “de minimis” since using someone else’s pictures has become so widespread on social media. Judge Vyskocil was hardly persuaded and did not mince words in her ruling that such an argument, if accepted, would represent a “seismic shift” in copyright protection.

Next, Defendant Tahari contended that since she had already credited the photographer in the caption of the photograph on social media, the luxury designer therefore had a right to use Plaintiff Iantosca’s copyrighted work.

Again, the District Court judge was not having it. “Simply put,” Judge Vyskocil wrote, “attribution is not a defense against copyright infringement.” (citing Narell v. Freeman, 872 F.2d 907, 914 (9th Cir. 1989) (finding failure to properly attribute copyrighted material weighs against fair use but “acknowledgment does not in itself excuse infringement” (citation omitted)).

Best Practices for Using Another’s Photos on Your Company’s Social Media

So what are the takeaways from the Elle Tahari case for not only copyright owners but also e-commerce and traditional businesses utilizing social media and hoping to repost photos or video clips containing the businesses product or service?

LESSON 1: Look at this photograph (just don’t repost it (without a license, anyway)

With apologies to your marketing team and social media manager, it is not okay to just copy and repost another’s photo (or any other copyrighted work) without their permission. Don’t be pennywise and pound foolish, especially when it comes to potentially nasty (if not business-shuttering) statutory damages for deliberate copyright infringement. Request permission or pay for a license. In this case, given the subject and subject matter, I cannot imagine it would’ve cost Tahari–a luxury fashion designer–all that much. In fact, were I advising Tahari from the get-go, I would’ve suggested some…shall we say, alternative approaches to hopefully acquire usage permission gratis or at least for a very generous one-time license.

LESSON 2: For creatives, if your work is worth protecting, it’s worth registering

This one’s for your copyright owners and holders. Registration is critical. This wasn’t always the case, but it is now. In fact, as this case demonstrates, thanks to the U.S. Supreme Court in last year’s Fourth Estate ruling, a copyright owner cannot even file suit for copyright infringement without being able to show that actual registration from the U.S. Copyright Office has been obtained. Fortunately for him, Plaintiff Iantosca was able to demonstrate (despite Defendant Tahari admittedly casting some doubt on its timing) that he had, in fact, received Copyright Registration Number VA 2-150-161 at the time of the filing of his Complaint. I’ve written about the importance of registration in a slightly different context here.

As the federal court in case explained, Plaintiff Iantosca owned a valid copyright at the time of filing suit, “thereby establishing Plaintiff’s right to sue and satisfying the first element for copyright infringement liability.”

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Ben Bhandhusavee is the Managing Attorney for BHANDLAW, PLLC, a startup, technology, and e-commerce law practice advising founders and management teams on company startup, corporate and technology transactions, e-commerce, as well as Internet privacy concerns. The firm serves corporate and individual clients throughout Arizona, the United States, and internationally. Our offices are conveniently located along the Camelback corridor in Phoenix’s financial district. For more information about our Copyright Law practice, feel free to reach out using the contact form on the right or call us at (602) 222-5542 to schedule a meeting. Connect with Ben on LinkedIn or Avvo.