Lets go to the Court-ourt, Lets go Get Away: Nicki Minaj faces a lawsuit for seven Instagram posts

July 30, 2019

3 min read

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What's going on here?

The Los Angeles based photography agency Splash News is suing Onika Tanya Maraj, known commonly as Nicki Minaj, for posting seven images on her Instagram without buying the rights or any permission from the agency.

What does this mean?

The 36-year-old rapper posted pictures of her in a multicoloured Oscar De La Renta gown at the Harper’s Bazaar Party in NYC, in a plaid Burberry outfit, attending a New York Fashion Week party and wearing a cheetah print outfit to Instagram. The pictures had an extremely large reach as they reached her 91 million followers. Splash News is claiming the Nicki Minaj illegally copied the photos which under US copyright law is the possession of the author unless the copyright has been specifically designated to a third party. The Copyright Act (1976) states that any work which is “fixed in a tangible medium of expression” and is “sufficiently permanent or stable to be perceived, reproduced, or otherwise communicated for a period more than transitory duration” is the property of the author.

Splash News suspect that Minaj’s best defence relies upon Section 107 of the Copyright Act, which evaluates whether the use of material protected under the Copyright Act is subject to “fair use”. Fair use is assessed on four criteria:

  1. Whether the use of the image is of a “commercial nature”, 
  2. The degree to which the image encourages “creative expression”, 
  3. “The quantity and quality” of the image, and
  4. The “effect” or “value” of the image’s use on the potential market.

What's the big picture effect?

This is the latest in a slew of copyright cases involving celebrities and posts they have made. The growing trend may shape how copyright law is interpreted on a large scale. The number of celebrities that have fallen foul of the Copyright Act is rising day by day. The names include Khloe Kardashian, Ariana Grande, Jennifer Lopez and recently Gigi Hadid (for a refresher on Hadid’s case read our article here). Gigi Hadid is currently attempting to successfully obtain a landmark ruling and fight back against photography agencies’ control over celebrities’ desire just to post a “cheeky gram” for their own pleasure.

She is arguing that in a case against the agency Xclusive-Lee that she made no effort to commercially profit from the image and she contributed to the photo by posing and smiling for it. The idea seems logical – no Gigi Hadid, no photo and posting pictures (as most users do) merely for personal satisfaction.

The problem lies in the subtle ways in which social media creates “value” on a market and can be used commercially. Once a certain number of followers has been obtained on Instagram, it is hard for celebrities to argue that they can in certain circumstances not effect potential markets. They cannot simply shed their influencer status for certain posts and not others. Furthermore, as Xclusive-Lee pointed out “just because [Hadid] noticed the photographer and smiled” this does not make her a “joint copyright holder”. Nevertheless, if the court rules in favour of Gigi Hadid, it would have devastating consequences for photography agencies, and make Nicki Minaj’s defence much more viable.

Splash News however, is all too aware of Gigi Hadid’s defence. They have pointed out that the rapper’s “unauthorised use is expressly commercial in nature” adding that “Minaj uses her Instagram feed for the purpose of promotion” and to “increase her visibility and desirability” to her 91 million followers. Regardless of whether Minaj or Hadid are successful in defending their Instagram posts, Hadid has brought attention to a defence that in the past celebs were unlikely to consider. Even if they are not successful in their defences, perhaps one day another “gramming” celeb will be?

Report written by Will Holmes

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