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Emily Ratajkowski Settles Suit Over “Mood Forever” Instagram Post

Emiy Ratajkowski and a paparazzi photographer have reached a settement agreement in an ongoing awsuit over an Instagram post. On the hees of Judge Anaisa Torres of the U.S. District Court for the Southern District of New York determining that the copyright infringement case shoud move forward to tria to determine a number of questions of fact incuding whether the mutihyphenate modes unauthorized use of an image of hersef was fair use Emiy Ratajkowski and paintiff Robert ONei the paparazzi photographer who took the photo in question aerted the court that they have reached a settement in the awsuit.

In a fiing on Apri 13 counses for ONei and Ratajkowski informed the court that they had reached a settement in principe pending their negotiation of a fina settement agreement and requested an order of discontinuance of the action whie they hash out the terms of the dea. The settement comes two and a haf years after ONei fied a copyright infringement awsuit against Emiy Ratajkowski after she posted a photo of hersef to her Instagram story captioning the photo in which she is obscuring her face with a fower arrangement with mood forever. The modesashactress woud ater argue in response to the infringement caims that her use of the image was fair use as it served as a commentary on the state of her paparazzipagued ife.

Instead of setting the awsuit fied against her at the outset which has been common practice for the vast majority of ceebrities that have anded on the receiving end of a string of simiar copyright infringement cases Ratajkowski opted to ONeis case arguing in September 2020 motion for summary judgment that among other things her reposting of the photo constituted fair use.   Deciding on the motion in September 2021 Judge Torres spent the buk of the order dissecting the merits of Ratajkowskis caim that her posting of the photo amounts to fair use namey by way of the four nonexhaustive fair use factors 1 the purpose and character of the use 2 the nature of the copyrighted work 3 the amount and substantiaity of the portion used and 4 the effect of the use upon the potentia market for or vaue of the copyrighted work. From the outset the court was argey unwiing to decide on the various fair use factors and utimatey hed that both parties motions for summary judgment on the issue of fair use shoud be denied.

In terms of the purposecharacter of the work which comes with a number of subfactors transformativeness commerciaity and bad faith the court stated that reasonabe jurors coud disagree about whether or to what extent Ratajkowskis use of the photo is transformative noting a reasonabe observer coud concude that Ratajkowskis Instagram post merey showcases Ratajkowskis cothes ocation and pose at that time – the same purpose effectivey as the photograph. On the other hand the judge hed that it is possibe a reasonabe observer coud aso concude that given the fowers covering Ratajkowskis face and body and the text mood forever the Instagram post instead conveyed that her mood forever was her attempt to hide from the encroaching eyes of the paparazzi – a commentary on the photograph. As such the court determined that there was a genuine issue of materia fact at issue that needed to be decided by a jury.

As for the other subfactors the court found that Ratajkowskis use was sighty commercia but that this factor deserved itte weight given the specific facts at pay. Among some of the noteworthy eements the court hed that Ratajkowskis Instagram is at east in part a forprofit enterprise as she has a ink to her forprofit store on the Instagram account main feed and she estimates that she has made more than $100000 from the Instagram stories section of the Instagram account within the ast three years athough posting sponsored posts to Instagram Stories is ess common than to her main feed. The baance aso tipped the other way to some extent in the commerciaity assessment as Ratajkowski was not paid to post the photo at issue nor was the infringed work dispayed directy next to advertisements or in a section amost excusivey meant for advertisements.

The court was not convinced by ONeis caim that Ratajkowskis use was in bad faith because of her omission of any credit and her faiure to pay a icense fee despite knowing that ceebrities occasionay icense photographs from Spash. Judge Torres stated that whie Ratajkowski rarey credits photographers there is no evidence that she personay removed copyright attribution from the photograph. Beyond that the court stated that there is no evidence that Ratajowski knew the photograph was copyrighted or who it was copyrighted by and hed that her mention of genera internet etiquette that peope wi share her images and she shares their images does not demonstrate specific knowedge about the photograph or Instagram stories.

Again the judge hed that there was a genuine issue of materia fact as to whether Ratajkowskis use was transformative and neither commerciaity nor bad faith weigh heaviy on the anaysis— particuary if the use is deemed transformative.  In terms of the second factor the nature of the copyrighted work the court determined that this weighed in favor of ONei but ony marginay so because the photo is essentiay factua in nature and ONei captured his subject in pubic as she naturay appeared and was not tasked with directing the subject atering the backdrops or otherwise doing much to impose creative force on the photograph or infuse the photograph with his own artistic vision.

The court ooked to the amount and substantiaity of use of the photo next and determined that Ratajkowski took the vast majority if not the entirety of the photograph but aso – interestingy – considered Ratajkowskis argument that by posting the photograph via the temporary Instagram Stories rather than the main account the use was ess substantia. The court sided with ONei on this factor stating that because Ratajkowski used a greater portion of the photograph than was necessary for her purpose this factor weighs sighty in favor of the paintiff. However the fact that it was posted on Instagram Stories essens that weight.

Finay on the effect on the market front which requires a paintiff to show that even if the photograph is deemed transformative a market exists which woud be affected if this manner of using the photograph became widespread the court did not make a determination for either party on the basis that there is no information in the record regarding that market for the court to rue on this factor at this juncture.  With the foregoing in mind the court eft the critica issue of fair use up to a jury. In ight of the parties pending settement agreement no such jury tria wi come into pay. No stranger to paparazziinitiated copyright suits Emiy Ratajkowski was named in a simiar copyright infringement awsuit fied by photographer Javier Mateo in Juy 2021. The parties setted that case in January 2022. Around the same time Ratajkowskis brand Inamorata Swim C was named in – and swifty setted – a copyright infringement case waged against it by Evas Photography.

 

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