Be Wary When Reposting Pictures on Social Media

One of the most popular types of content shared on social media are photographic images. However, posting an image you do not own the rights to can prove costly, as a New York based fashion designer recently learned thanks to a September 2020 decision issued by the United States District Court for the Southern District of New York.

In Iantosca v. Elie Tahari, Ltd., the district court found the defendant fashion designer, Elie Tahari, liable for copyright infringement after it posted a photograph taken by plaintiff, photographer Mark Iantosca, to the fashion designer’s Facebook and Twitter accounts. The subject photograph depicted a digital content creator wearing the designer’s clothes. The designer posted the photograph on its social media sites without a license or permission from the photographer, who filed suit for copyright infringement.

The court initially determined that plaintiff had both properly registered the photograph with the U.S. Copyright Office and had received a Copyright Registration Number for the image. The court then rejected all of the designer’s affirmative defenses before holding it liable for copyright infringement.

First, the district court found that defendant could not establish any of the four factors in 17 U.S.C. §107 to establish “fair use.”  Indeed, in rejecting the defendant’s fair use defense, the court expressly held that “each of the four fair use factors outlined in Section 107 weighs in favor of the Plaintiff.”  The court similarly rejected the defendant’s argument that its use of the photograph was de minimis because “reposting another’s picture has become commonplace on social media.” The district court was not persuaded by this claim and stated there “is nothing ‘trivial’ about a business utilizing a professional photographer’s work to promote its products.” Finally, the court rejected the argument that defendant’s crediting of plaintiff on the designer’s social media site was a defense to copyright infringement. The court ruled that “attribution is not a defense against copyright infringement.”

Although the parties to this action ultimately reached a tentative settlement and the matter was dismissed on December 8, 2020, this case serves as a reminder that there can be significant consequences (and costs) for posting seemingly innocuous pictures on social media without the permission of the copyright owner.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.