Ye's (f/k/a Kanye West) "White Lives Matter" t-shirt controversy is back.  Last week, the rapper and fashion designer was hit with another copyright infringement lawsuit.  This time, photographer Michaela Efford is claiming that Ye posted Efford’s street style photograph of Vogue editor Gabriella Karefa-Johnson to his Instagram page without Efford’s permission.  Efford captured the image of Karefa-Johnson with “the intention of it being used commercially and for the purpose of display and/or public distribution.”

The controversy began during Paris Fashion Week when Ye donned an oversized shirt that read “White Lives Matter” on the back for his surprise Yeezy Season 9 show.  Karefa-Johnson took to Instagram to call Ye’s fashion statement “indefensible,” adding, “there is no excuse, there is no art here.”  In response, Ye posted Efford’s photo of the Vogue editor to his Instagram page with the caption, “This is not a fashion person[.]”  Ye also posted a zoomed-in version of the same photo.  Both of Ye's posts have since been removed.

According to the Complaint filed in the Central District of California, Ye had “complete control over and actively reviewed and monitored the content posted on” his Instagram account.  He “received a financial benefit directly attributable to the infringements” by way of “increased traffic to the account.”  Ye’s Instagram account is, according to the pleadings, “a key component” of his “lucrative commercial enterprise.”

Efford specifically says that she “personally selected the subject matter, timing, lighting, angle, perspective, depth, lens, and camera equipment used to capture the image.”  Emphasis on Efford's creative process may have been included to preempt the argument that street style and paparazzi photos – as opposed to more staged and stylized photos – lack the creativity and author input required to constitute an original work of art protected by the Copyright Act.   

The issue came up in the now-settled suit photographer Robert O’Neil brought in the Southern District of New York against model Emily Ratajkowski for the model’s use of O’Neil’s photo of her covering her face with a bouquet of flowers outside of a flower shop in downtown Manhattan.  Ratajkowski posted the photo with the caption, “Mood Forever.”

Ratajkowski argued that O’Neil’s photo lacked sufficient originality because O’Neil merely took the photo when and where he happened to inadvertently cross paths with her, rather than choosing the timing or location or the photograph based on any sort of creative vision.  The Court disagreed, noting that (1) paparazzi photographs have been found original based on their “myriad creative choices, including, for example, their lighting, angle, and focus,” and (2) there is an “extremely low” standard for originality. 

Ratajkowski also maintained that her Instagram post was “transformative” under the fair use doctrine, because it was a social commentary on fame, and not made for commercial purposes, pointing  to the post’s caption (“Mood Forever”), along with the fact that she is covering he face in the photo.  The case settled before fair use was decided, but Efford’s suit against Ye could revive the question.  Ye also included his own original captions in both of the Instagram posts at issue, and may very well argue that his posts constitute fair use of the photo because the posts were not made for a commercial purpose. While purpose of the use is just one of the four statutory fair use factors, courts are likely to place a lot of weight on purpose in the wake of the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith.  

Stay tuned.

The case is Michaela Efford v. Ye F/K/A Kanye West, No. 23-cv-4548 (C.D. Cal.).