Emily Ratajkowski and a paparazzi photographer have reached a settlement agreement in an ongoing lawsuit over an Instagram post. On the heels of Judge Analisa Torres of the U.S. District Court for the Southern District of New York ruling that the copyright infringement case should go to trial to determine a number of factual issues, including whether the Unauthorized use of a multi-hyphenated model image of herself was fair use, Emily Ratajkowski and plaintiff Robert O’Neil, the paparazzi photographer who took the photo in question, alerted the court that they had reached a settlement in the lawsuit.
In a filing on April 13, attorneys for O’Neil and Ratajkowski advised the court that they had “reached a settlement in principle pending their negotiation of a final settlement agreement” and sought an injunction. discontinued the action while they hammered out the terms of the agreement. The settlement comes two and a half years after O’Neil filed a copyright infringement lawsuit against Emily Ratajkowski after she posted a photo of herself to him. instagram story, captioning the photo in which she obscures her face with a flower arrangement with “mood forever.” The actress-model slash would later argue in response to infringement claims that her use of the image was fair use, as it served as a commentary on the paparazzi-ridden state of her life.
Instead of settling the lawsuit against her initially, which is common practice for the vast majority of celebrities who have landed on the receiving end of a series of similar copyright infringement cases, Ratajkowski has opted for O’Neil’s case, arguing in a September 2020 motion for summary judgment that, among other things, his re-posting of the photo constituted fair use.
Ruling on the motion in September 2021, Judge Torres spent the bulk of the order dissecting the merits of Ratajkowski’s claim that his posting of the photo amounts to fair use, namely, by means the four non-exhaustive fair use factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) amount and size of portion used; and (4) the effect of the use on the potential market or value of the copyrighted work. From the outset, the court was largely reluctant to rule on the various fair dealing factors and ultimately concluded that both parties’ motions for summary judgment on the fair dealing issue should be dismissed.
In terms of purpose/character of work, which comes with a number of sub-factors (transformativeness, commerciality and bad faith), the court said that reasonable jurors might disagree on whether or to what extent the use of the photo by Ratajkowski is transformative, noting that a reasonable observer might conclude that Ratajkowski’s Instagram post “simply features Ratajkowski’s clothing, location, and pose at that time — the same purpose, in effect, as the photograph” . On the other hand, the judge considered that “it is possible that a reasonable observer could also conclude that, given the flowers covering Ratajkowski’s face and body and the text ‘forever mood’, the Instagram [post] rather conveyed that [her] “Mood Forever” was his attempt to hide from the prying eyes of the paparazzi – a commentary on photography. As such, the court determined that there was a genuine question of material fact at issue which should be decided by a jury.
As for the other sub-factors, the court found that Ratajkowski’s use was “slightly commercial”, but that this factor deserved “little weight” given the specific facts at stake. Among some of the notable elements: the court found ruled that Ratajkowski’s Instagram is, “at least in part, a for-profit business”, as she “has a link to her for-profit shop on the main feed of the Instagram account”, and she believes that “she has earned over $100,000 from the Instagram stories section of the Instagram account over the past three years, although posting sponsored posts on Instagram Stories is less common than on its main feed.” The scales also tipped the other way to some degree in the assessment of commerciality, as Ratajkowski was not paid to post the photo at issue, “nor was the infringing work posted. directly next to advertisements, or in a section almost exclusively for advertisements”.
The court was not persuaded by O’Neil’s assertion that the use of Ratajkowski was in bad faith due to “his ‘failure to give any credit‘ and his [failure to pay] a license fee when he knows that celebrities sometimes license photographs from Splash. Judge Torres said that while “Ratajkowski rarely credits photographers, there is no evidence that she personally removed the copyright attribution from the photograph.” Beyond that, the court said that “there is no evidence that Ratajowski knew the photograph was copyrighted or by whom it was copyrighted,” and said judged that his mention of “general internet etiquette” that “people will share [her] pictures and [she] share[s] their images,” does not demonstrate specific knowledge about photography or Instagram Stories.
Again, the judge held that there was a genuine question of material fact as to “whether Ratajkowski’s use was transformative, and neither commerciality nor bad faith weighs heavily on the analysis, particularly if use is considered transformative”.
Regarding the second factor, the nature of the copyrighted workthe court determined that weighed in favor of O’Neil, “but only marginally” because the photo is “essentially factual” and O’Neil “captured [his] subject in public, as [she] appeared naturally, and [was] not responsible for directing the subject, altering backgrounds, or doing much to impose creative force on the [photograph] or infuse the [photograph] with [his] own artistic vision.
The court sought to the amount and extent of use of the following photo, and determined that Ratajkowski had taken “the vast majority, if not all, of the photograph”, but also – interestingly – considered Ratajkowski’s argument that “by publishing the photograph [via the temporary] Instagram Stories, rather than the main account, usage was less substantial. The court sided with O’Neil on this factor, stating that “because Ratajkowski used more of the photograph than necessary for his purpose, this factor weighs slightly in favor of the plaintiff”. However, “the fact that it was posted on Instagram Stories takes that weight down.”
Finally, on the effect on the market before, which requires a plaintiff to show that “even if photography is considered transformative, there is a market that would be affected if this way of using photography were to become widespread”, the court did not issue a decision for the either party, on the basis that “there is no information on the record regarding this deal” for the court to “decide on this factor at this stage”.
With the above in mind, the court left the crucial issue of fair dealing to a jury. In light of the parties’ pending settlement agreement, no jury trial will come into play.
Accustomed to copyright lawsuits initiated by the paparazzi, Emily Ratajkowski was named in a similar copyright infringement lawsuit filed by photographer Javier Mateo in July 2021. The parties settled that case in January 2022. Around the same time, Ratajkowski’s brand, Inamorata Swim LLC, was named in — and quickly settled — a copyright infringement case brought against it by Eva’s Photography.
The case is O’Neil v. Ratajkowski et al, 1:19-cv-09769 (SDNY).