IP Law Daily, COPYRIGHT—C.D. Cal: Hashtag license: Comments on an Instagram page can implicitly give consent to the use of a photograph, (Jun 17, 2024)

By Matthew Hersh, J.D.

But the photographer’s permission, given via the comment #sharemy1pic, did not extend to the marketing of hotel products on its website.

The author of a photograph of two child models on the grounds of a fancy Hollywood hotel implicitly authorized the hotel to use the photograph in its own social media by tagging the hotel’s Instagram page with the hashtag #sharemy1pic, the federal court for Los Angeles has held. But the hashtag approval, the court found, was not a green light for the hotel to use the photograph to market its own branded products via its website, far less to misappropriate the image and likeness of the two child models for commercial purposes. (Khachatryan v. 1 Hotel West Hollywood L.L.C., No. 2:23-cv-10829-ODW-E (C.D. Cal. June 14, 2024)).

The lawsuit was brought by Sunny Khachatryan, described in the complaint as “a prominent figure in the field of mental health who is regularly featured in magazines such as Psychology Today.” She took a photograph of two minor children at the 1 Hotel West Hollywood, a pricey Los Angeles boutique hotel. The two children, who were wearing hotel-branded bathrobes at the time, are ostensibly child professional SAG models that have appeared in numerous television commercials, print ads, and other paid commercial uses of their images and likenesses.

The lawsuit alleges that the hotel took advantage of the popularity of the two child models by using the photograph in its own social media. Worse, the lawsuit claims, the hotel also used the photograph to market the bathrobes on its website. The lawsuit brought claims of copyright infringement, removal of copyright management information, misappropriation of minors’ likeness, violations of California privacy law, conversion, unfair competition under California law, and cyber negligence.

The hotel moved to dismiss on several of the counts, and sought judgment on the pleadings on several other counts.

Copyright infringement. The court denied the hotel’s motion for judgment on the pleadings on the copyright infringement complaint. The question was whether the hotel had an implied license to use the photo—and if so, the scope of that license. After the photographer posted the photo on one of the minor’s Instagram account, the hotel commented “we love this photo!” and asked for permission to share the photo on its own social media account—a request the photographer granted by responding with a comment #sharemy1pic. That created implied consent for the hotel to distribute the photo on its own social media, the court reasoned. But the hotel arguably exceed the scope of this license, the court found, when it used the photograph on its website for the purpose of selling its robes. “The facts are not clear that this use falls within the scope of the license,” the court found. The case would therefore have to continue.

Removal of copyright management information. The court found in the hotel’s favor on this count, dismissing the claim. The photographer alleged that the hotel violated the Digital Millennium Copyright Act by removing the minor’s Instagram handle when it distributed the work. But the Instagram handle “did not include any identifying information about the author of the work or the copyright owner,” the court found. Thus, the handle itself could not constitute copyright management information as defined in the DMCA.

Misappropriation. The court refused to grant the hotel’s motion for judgment on the claim on two misappropriation counts (one for misappropriation of minors’ likeness and the other for unauthorized use of photograph or likeness). The reasoning here followed along the same lines as the implied license argument. The hotel may well have had permission to use the photograph on its social media accounts, the court found, but not in the marketing of its bathrobes. And the use of the photograph could not have been “incidental,” the court found—the two subjects were allegedly professional models and commercial actors. And even if the two minors were relatively unknown, the court found, “the appropriation of the identity of a relatively unknown person may result in economic injury or may itself create economic value in what was previously valueless.” Thus, this claim too would go forward.

Conversion, unfair competition, and cyber negligence. These counts, the court easily found, were preempted by the Copyright Act. Each claim arose on the same facts as the copyright infringement claim—the taking of the photo for commercial use. Each would be dismissed as a result.

Statutory damages and attorney fees. The court issued a mixed ruling on the photographer’s right to statutory damages and attorney fees. The photograph could not obtain such remedies under the Copyright Act, the court found, because she did not register her copyright in the photograph until after the hotel allegedly infringed it. The hotel’s motion to dismiss the damages claim on this ground would therefore be dismissed. But to the extent that the minor’s misappropriation claim was based on California Civil Code section 3344, the court found, attorney fees was expressly authorized under the law. This aspect of the claim would therefore go forward.

The Case is No. 2:23-cv-10829-ODW-E.

Judge: Wright, O.

Attorneys: Tyler R. Dowdall (Tarter Krinsky and Drogin, LLP) for Sunny Khachatryan. Myriah Jaworski (Clark Hill LLP) for 1 Hotel West Hollywood L.L.C.

Companies: 1 Hotel West Hollywood L.L.C.

Cases: Copyright PublicityRights TechnologyInternet GCNNews