June 9, 2022
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As recently reported by BuzzFeed News, Emily Ratajkowski has reached a settlement in the copyright infringement lawsuit brought against her for posting a paparazzi picture of herself on her Instagram story.
Shortly before the settlement was reached, the Court declined to grant a summary judgment motion brought by Ratajkowski on the basis that the image was not protected by copyright and that her use thereof was a fair use. The Court decided the case should proceed to a trial on the merits. In rendering its decision, the Court considered, for the first time, the copyright ramifications of an Instagram story, which lasts only 24 hours, versus an Instagram post, which lasts (potentially) forever.
The court found that the length of availability of the infringing image was a significant factor that should be considered: “If the Instagram photograph only appeared for twenty-four hours, it is much less likely that someone might take the photograph from the Instagram account rather than licensing it from the plaintiff, compared to that same risk if the Instagram photograph was permanently on the Instagram account.”
In light of the settlement, the question of whether publication of an image of oneself is a fair use will not be adjudicated at this time.
Authors: Samara Friszman and Sarah Stothart