A paper published back in 2007 pondered the possibility that on any given day, regular people may commit dozens of copyright infringements, without really knowing it.
While all pitfalls are difficult to predict, the public is much better informed 13 years on and tech-savvy individuals are now more likely to spot potential pitfalls, especially when they carry out more obvious acts such as uploading copyrighted content to social media.
But despite the millions of takedown notices filed every year alongside thousands of lawsuits, even those with massive legal teams and vast resources can make costly errors. Case in point – Kendall Jenner, and her Instagram account with tens of millions of Instagram followers, and a video for which the model allegedly doesn’t own the copyrights.
Titled ‘bye nyc’ and posted to Instagram on September 13, 2019, it features Jenner leaving a building and being greeted by the usual crowd of photographers aiming to get a shot of the superstar model. It lasts just a few seconds but was nevertheless gobbled up by Jenner’s army of fans who, to date, have viewed the clip almost 22.8 million times.
“This is an action for copyright infringement under Section 501 of the Copyright Act,” the complaint reads.
“This action arises out of Defendants’ unauthorized publication and public display of a copyrighted video (the ‘Video’) of defendant Kendall Jenner. The Video and the copyright in the Video are owned and registered by Plaintiff.”
Ma says she has registered the video with the Copyright Office (Reg. # PA 2-211-871) which is important as without an application she wouldn’t be able to sue. But sue she is.
Claiming that the video was viewed “over 13 million times” (a figure that is soon set to double), Ma says that the clip wasn’t licensed to anyone for any use and therefore Jenner did not have permission to post the video on Instagram.
“Defendants infringed Plaintiff’s copyright in the Video by reproducing and publicly displaying the Video on the Website. Defendants were not, and have never been, licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the Video,” the complaint notes.
“The acts of Defendants complained of herein constitute infringement of Plaintiff’s copyright and exclusive rights under copyright in violation of Sections 106 and 501 of the Copyright Act, 17 U.S.C. §§ 106 and 501.”
The lawsuit says that Jenner’s infringement wasn’t accidental. On the contrary, it was “willful, intentional, and purposeful” and in disregard of Ma’s rights as the copyright holder. As a result, Jenner must now compensate for the damage caused in one of two ways.
On the one hand, Jenner could pay damages and hand over all the income generated by the infringement. In that case, Ma wants Jenner to “account for all profits, income, receipts” so that can be entered into the calculation.
On the other, Ma states that she is entitled to statutory damages of up to $150,000 for the “willful” nature of the infringement. In any event, the New York resident also wants to be compensated for attorneys’ fees and full costs.
In addition, Ma’s attorneys want the court to order Jenner to remove the video from Instagram. Why that wasn’t actioned earlier directly with the social media company isn’t detailed.
Angela Ma is demanding a trial by jury but it seems unlikely that the case will progress that far. Like many such actions, it will probably disappear into the ether following a private settlement.
The copyright infringement lawsuit filed in California can be found here (pdf)