Category Archives: Infringement

Kim Kardashian is being sued for posting unlicensed photo of herself and husband Kanye West on Instagram

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2020 is barely one month old and in the news we learn that Kim Kardashian is being sued by professional photographer Saeed Borden for copyright infringement.  In a complaint filed on Jan 22, 2020 in the Eastern District Court New York, the plaintiff alleges that on June 14, 2018 at an album listening party in Queens New York for rap artist Nas’ album ‘Nasir’ which was produced by Kanye West, he photographed Kim Kardashian and her husband Kanye West; and subsequently licensed the image to news media outlets.  Neither Kardashian nor SKIMS BODY, Inc her company were “licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the photograph.” 

However, in October 2018, the defendant posted the image to her Instagram account without seeking prior permission or authorisation.  By doing so, Kim Kardashian engaged in “willful, intentional, and purposeful [copyright infringement], in disregard of and indifference” to the photographer’s ownership rights (s201 Copyright Act 1976 – USA).  As a result, he is seeking monetary damages, including “the profits, gains or advantages of any kind attributable to the infringement of his photograph.” 

This case echo two suits filed in 2019 by pop musicians Justin Bieber and Ariana Grande for posting images of themselves on social media without authorisation or license from the photographers or their agencies.  Both of those cases were settled out of court with Ariana Grande reportedly paying $50,000 to settle.  It remains to be seen whether Kim Kardashian will cave in and do the same.

  

References:

Saeed Bolden v. SKIMS BODY, INC. and KIM KARDASHIAN, 2:20-cv-00365 (EDNY)

https://www.digitalmusicnews.com/2020/01/24/kim-kardashian-kanye-west-photo-sued/

https://www.thefashionlaw.com/home/kim-kardashian-is-the-latest-celeb-to-be-sued-for-posting-an-unlicensed-photo-of-herself-to-her-instagram-account

 

Digital Single Market Directive 2017/790 will not be implemented

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In reply to the question what plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law; the Secretary of State for Business, Energy and Industrial Strategy responded that ‘the United Kingdom will not be required to implement the Directive and the government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process’.

Recalling a report published in December 2019 into online copyright infringement and the value gap, BAPLA – the British Association of Picture Libraries and Agencies – concluded that in the past 10 years, its members had suffered a significant loss in income through copyright infringement attributed to unauthorised and unlicensed images on social media and whose members wholly endorsed the proposals in Article 17 of the DSM Directive 2017/790.

Article 17 contains provisions, inter alia, for online content-sharing providers to obtain authorisation form rights holders by concluding a licence agreement with strict liability for unauthorised acts by the providers when communicating and making available to the public copyright-protected works.  Also included is a requirement for providers to act expeditiously in taking down and removing infringing works when brought to their attention by rights holders.

The expectation of the report was that implementation of Article 17 would have played a crucial role in restricting the distribution of unauthorised content.

 

Reference:

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2020-01-16/4371

Hotlinking is not copyright infringement – UK High Court

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Hotlinking or inline linking is the linking of an image on one website to a web page on another website where the original image is located.  In the case of Wheat v Google LLC, Christopher Wheat a photographer, operated a website “theirearth.com”; a news media site with original articles, photographs, and a directory to other websites. Mr Wheat claims he is the owner of the copyright in both the articles and photographs on the website which was freely accessible to the public.

Mr Wheat brought a claim against Google LLC for copyright infringement on the grounds that when a user searches Google, the resulting list shows headline results with links to hotlinking websites prioritised over his own website and when the user clicks on the headline result, he/she will be directed to a hotlinking website on which his images are displayed as hotlinks to his own website ‘theirearth.com’. He alleges that this results in a loss of traffic to his own website and that Google has engineered or knowingly permitted the results to show the hotlinking sites higher in the results ranking in order to increase revenue from advertising on those sites affecting revenues on his own website.  His main claim, inter alia, is that Google did not have his consent to use his cached content to enable internet users to access said content via hotlinking websites and that the communication was without his licence.

In an earlier judgement given against an application to file out of jurisdiction, it was found that the complaint lay not against Google, but with the hotlinkers themselves.  Hotlinking does not involve an act of copying and therefore no copyright infringement occurs.  The complaint that Google has prioritised one website over another does not give rise to a claim for copyright infringement.  The application was dismissed and on appeal was upheld. The complaint against Google cannot be unlicensed communications because they are not communications to a new public nor communications by a new technical means.

The US Court of Appeal for the Ninth Circuit considered this in a similar complaint against Google and ruled that inline linking does not violate US copyright law. The inline linker does not place a copy of the image on its server, but a code which points to the server where the copyright owner has placed the image file … ‘the Copyright Act…does not protect a copyright holder against [such] acts….’.

 

 References:
Wheat v Google LLC and Monaco Telecom [2018] EWHC 550 (Ch)
Wheat v Google LLC [2020] EWHC 27(Ch)
Perfect 10, Inc v Amazon.com,Inc 487 F.3d 701 (9th Cir. 2007)