Khloe Kardashian has been hit with a copyright infringement suit for posting a photo of herself taken by an international celebrity photo agency named Xposure Photos UK LTD. After review of the complaint, the case has a few notable issues worth addressing.
First, some might be asking (and no doubt Ms. Kardashian must have been thinking this herself), how can someone get sued for posting a picture of one's self? And therein lies the rub-unless the subject of a copyrightable work contributes in some way to the actual authorship of the work (in this case, a photograph), that subject has no copyright claim in the work. The photo that is the subject of the case was one in a “series of photos depicting defendant and her sister going for a meal at David Grutman’s Miami restaurant, Komodo,” according to the complaint. Thus, Ms. Kardashian does not have any authorship claim; she was merely ‘caught” out in public by Xposure’s intrepid photographer.
But what about Ms. Kardashian’s right of privacy? Her expectation of privacy was for all practical purposes non-existent in this instance because she was in a public setting, so a counterclaim for invasion of privacy will likely go nowhere if asserted.
A second interesting point about the case is the medium of infringement: Ms. Kardashian posted the photo to her Instagram account. She is known to receive upwards of $250,000 for sponsored posts to her social media accounts due to her enormous (even by Trumpian standards) following of nearly 67 million users. The plaintiff is making hay out of this fact, and attempts to thwart any defense of fair use by asserting in the complaint that her “unauthorized use” of the photo “is commercial in nature” because “Kardashian uses her Instagram feed for the purposes of promotion—specifically, to promote her own business interests, products, and ventures…”
A final noteworthy point about the case is the fact that Ms. Kardashian will not be able to say her use was an innocent infringement. The photo’s copyright management information (“CMI”) was removed before it was posted to Instagram, and the information removed, “© XPOSUREPHOTOS.COM,” clearly put the world on notice that the plaintiff claimed copyright in the photo. This means not only a violation of the DMCA (specifically 17 U.S.C. §1202) by Kardashian, but also that the infringement was willful, thereby justifying a potential statutory damages award of up to $150,000 for the infringement.
$150,000, plus the possibility of having to pay the plaintiff’s attorney’s fees and costs, may be a drop in the bucket for someone making $250,000 for a single social media post, but it still is nothing to sneeze at, so the manner in which this case is ultimately resolved will be interesting to watch.