Estonian media has been buzzing with recent news about alleged copyright infringements by local socialite and influencer Brigitte Susanne Hunt (BSH). In a nutshell, BSH used a photo resembling one of Kim Kardashian’s photos for the cover of her newly released biography. Additionally, BSH included some photos in her book for which Delfi Meedia AS holds the copyrights, without obtaining prior consent. There are some hot takes on whether BHS has infringed copyrights in one or the other case. Here are Senior associate Olivia Kranich‘s two cents on the topic.
(1) Cover photo – Kim Kardashian / Jean-Paul Goude vs BSH
The author of the famous Kim Kardashian photo published in Paper magazine and set out to #breaktheinternet is Jean-Paul Goude. The photo is actually a recreation of his earlier work called “The Champagne Incident.”
Since there has been some confusion, it is important to note that copyrights to a photograph typically belong to the photographer, not to the person in the photo. While there is a possibility that Goude’s rights were transferred to Kim Kardashian or Paper magazine, this does not seem to be the case here.
BSH’s use of a similar photo does not automatically constitute copyright infringement. She has not used (copied or reproduced) Goude’s photo. A photographer simply took a similar photo of BSH based on the same idea. But copyrights do not protect ideas or specific poses.
A quick look into case law shows similar situations in past where the court has found no infringement of copyrights. In Bill Diodato Photography, LLC v. Kate Spade, LLC, fashion-accessory photographer Bill Diodato took a photo depicting a view from outside the bottom portion of a bathroom stall, showing a woman’s feet in stylish shoes with a handbag resting on the side. Ten months later, a fashion accessory company Kate Spade, LLC ran an advertising campaign that included a similar photo. The court found that Kate Spade did not infringe Bill Diodato’s copyrights as the allegedly copied elements (the bathroom as a setting, the dominant shapes of the woman’s legs, inclusion of fashionable shoes and underwear) were not original and therefore not protected.
In Peter B. Kaplan v. Stock Market Agency, Inc., two similar pictures depicting a person contemplating a leap from a tall building were compared. Again, the court ruled that nearly all the similarities between the works (expression of the idea of “distraught businessman standing on the ledge of a tall city building”) arise from noncopyrightable elements and, thus, render the works not substantially similar.
Although the above cases concern US law, the conclusions under Estonian law would likely be the same. As for a local example, Estonian courts have discussed whether a combination of formulas in notebooks meant for scholars is a copyrighted work and whether using a similar combination of formulas would be considered copyright infringement. In this case, the court found that copyrights have been infringed – but only because the combination of formulas used by the defendant had the same typos as in the plaintiff’s original work and, thus, it was very clear that the plaintiff’s work had been copied.
(2) Photos in the book – Delfi Meedia AS/Karli Saul vs BSH
To illustrate her story, BSH used multiple photos of herself taken by photographer Karli Saul, along with a magazine cover she appeared on, in her book. In this case, it is pretty clear that BSH has infringed the copyrights of Delfi Meedia AS.
Just like with the cover photo, copyrights belong to the photographer, not the subject of the photo. While BSH requested consent from Karli Saul, she should have also sought consent from Delfi Meedia AS.
This case serves as a reminder that when using copyrighted works, it is crucial to identify the true rights holder. If a photographer is employed by a company or provides services, their rights are often transferred to the company, whether knowingly or not. To mitigate the risks, consent to use a copyrighted work should always be in written format or in a format which can be reproduced in writing.
In summary, it is likely that BSH infringed on the copyrights of Delfi Meedia AS for the photos used in her book, but less likely that the court would find BSH infringing Jean-Paul Goude’s copyrights in relation to the cover photo.
