In 2019, model Emily Ratajkowski faced a copyright lawsuit from photographer Robert O’Neill. O’Neill, a paparazzi photographer, had taken a street photograph of Ratajkowski. Ratajkowski later reposted the photo on her Instagram story, a feature of Instagram where one can temporarily post a picture for 24 hours, with an additional caption superimposed over the photo stating “mood forever.” [1] Under Section 106 of the Copyright Law of the United States, O’Neill held the exclusive right to authorize the reproduction of the photograph. Citing this exclusive right, O’Neill subsequently filed a complaint against Ratajkowski for her “unauthorized reproduction” of the photograph. However, Section 107 of copyright law outlines certain exceptions that fall under the category of “fair use,” stating that if the original work is reproduced “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” then the reproduction does not constitute copyright infringement. [2] Ratajkowski’s lawyers argued that the Instagram story is fair use. In the photograph, Ratajkowski holds a bouquet of flowers over her face, blocking her face from paparazzi; in her repost, Ratajkowski also adds the text “mood forever.” Ratajkowski’s lawyers thus argued that the addition of the text transformed the photograph into a critique of the “abusive, aggressive, and harassing practice of paparazzi.” [3]

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