Authors: Gonzalo E. Mon & Michael Zinna
Companies get excited when they find pictures of celebrities wearing (or using) their products, and often wonder whether they can post those pictures to their social media accounts. In addition to the right of publicity issues we’ve noted in the past, a new decision from a federal court in New York serves as a reminder that companies also need to consider copyright issues.
Photographer Mark Iantosca took a picture of a digital content creator wearing Elie Tahari clothing. Elie Tahari posted that picture on its social media accounts with the following caption: “@linhniller caught us in our footsteps wearing head to toe #ElieTahari. We loved how she styled the whole look.” Although the caption also tagged Iantosca, the company hadn’t sought his permission, and the photographer sued for copyright infringement.
In its defense, Elie Tahari argued that the use of the photograph was de minimis because reposting another’s picture has become commonplace on social media. Although that’s an argument that in-house counsel frequently hear from their marketing teams, the court soundly rejected it. “There is nothing ‘trivial’ about a business utilizing a professional photographer’s work to promote its products.” To hold otherwise “would represent a seismic shift in copyright protection.”
The court also rejected Elie Tahari’s arguments that its post did not amount to infringement simply because the company credited the photographer in the caption of its post or because it had hired the model to wear its clothing. “Simply put, attribution is not a defense against copyright infringement [and] defendant’s argument that the model is wearing defendant’s clothing line has no bearing on liability for copyright infringement.”
Many people who use social media in their personal lives repost pictures without permission from the photographers and without any consequences. It’s tempting to think that the same is true if you repost pictures on your company’s social media accounts. As this case demonstrates, though, the consequences for doing that can be much greater.
