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Ninth Circuit:
Lil Nas X’s Instagram Posts Did Not Infringe Artist’s Protected Work
Opinion Says Allegations That Both Parties Publicly Post Similar Images on Same Platform Is Not Sufficient to Plausibly Plead Claim That Defendant Copied Plaintiff’s Photographs
By a MetNews Staff Writer
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Above is a photo, at left, of the plaintiff in a copyright infringement suit which, it is claimed, is infringed by a shot singer Lil Nas X, at right. The Ninth U.S. Circuit Court of Appeals has affirmed a dismissal of the action with prejudice. |
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The Ninth U.S. Circuit Court of Appeals has held that a model’s copyright infringement action against rapper Lil Nas X for posting on Instagram allegedly copycat photographs of himself was properly dismissed where the plaintiff only alleged “access” to the protected images based on assertions that both men had accounts on the social media giant’s platform and promoted scantily clad self-portraits, and the pictures in question were not substantially similar.
In an opinion by Circuit Judge Kenneth K. Lee, filed Friday, the court acknowledged that “the Internet makes it easier than ever to reach an artist’s copyrightable works” and that social media platforms require a different analysis than that applicable to standalone websites because they “are designed to facilitate the discovery and sharing of available content by using algorithms to recommend tailored content to consumers.” Lee wrote:
“[S]ocial media and other digital-sharing platforms could make it easier for plaintiffs to show that defendants had access to their materials—but only if they can show that the defendants had a reasonable chance of seeing their work under that platform’s algorithm or content sharing policy. That is a big ‘if’—and…[the plaintiff] has fallen short here.”
After recording-artist Montero Hill, the writer of the 2019 hit single “Old Town Road”—who is known professionally as “Lil Nas X”—posted semi-naked photographs of himself between March and October 2021, artist and model Rodney Woodland filed a complaint against him on June 8, 2022, alleging that the singer infringed on 12 of his copyrighted photographs.
Copied Works
Under Ninth Circuit precedent, plaintiffs must show that the defendant copied the work at issue, as opposed to independently coming up with the same expression, and unlawfully appropriated it. As such, Woodland was required to produce at least circumstantial evidence. Lee noted, that Hill had access to the plaintiff’s art and that the works in question are substantially similar.
Woodland concedes that his works are not widely disseminated—each of his Instagram posts displaying the photographs garnered less than 76 “likes”—but claims that Hill had a reasonable possibility of viewing them on the social media platform in light of the similar content of the two users’ profiles and algorithms that try to match a party to pages of interest. He contends that Hill’s posts show the singer in strikingly similar poses to those he took in his work.
In January 2023, Hill filed a motion to dismiss Woodland’s operative complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the plaintiff’s claims fail as a matter of law for failure to plausibly allege that copying of a protected expression occurred.
District Court Judge Andre Birotte Jr. of the Central District of California agreed with the defendant and granted the motion, without leave to amend, noting that “[t]his is Plaintiff’s third attempt to plead a viable complaint.”
Circuit Judges Ronald M. Gould and Mark J. Bennett joined in Friday’s opinion, which affirms the order.
Reasonable Likelihood
Lee noted that Woodland offers a “chain of events” to bolster his claim that Hill had a reasonable likelihood of accessing his photographs on Instagram, submitting evidence of how the platform’s recommendation algorithm works. Rejecting the argument as “speculative,” the jurist wrote:
“Even if we took judicial notice and accepted the information as true, Instagram’s purported policy does not support Woodland’s theory. None of the documents support the contention that similar profile content alone would cause Instagram to promote a profile’s posts to users….Rather, Woodland’s sources explain that Instagram suggests posts based on the accounts that users follow; the posts users like, share, and comment on; users’ history of connecting with accounts; and how popular a particular post is and how others have interacted with that post.”
Continuing, he said:
“We need not decide today what precise facts a plaintiff must allege about a digital platform’s algorithm or content-sharing policy to show ‘access.’ But we can say that Woodland has not sufficiently pleaded that Hill had access to his Instagram photos, given that he does not plausibly allege that Hill followed, liked, or otherwise interacted with posts or accounts connected to or similar to Woodland. And because Woodland has failed to show access, he has not adequately alleged copying.”
He further discounted the plaintiff’s assertion that the fact that Hill allegedly copied 12 of his photographs raises an inference of copying, pointing out that Woodland fails to cite any precedent to support the idea that a “serial infringement” would bolster his claim.
No Substantial Similarity
Lee rejected the contention that Hill’s depictions of himself were substantially similar to those of Woodland. With respect to two of the photos, he said:
“Granted the photos both portray a naked Black man with a bright light obscuring his groin in front of a blue sky-like background, but the way that idea is expressed in the selection and arrangement of elements is not similar. There are other differences: (1) the positioning of arms, (2) Hill’s face is visible, while Woodland’s is obscured, and (3) Hill’s skin glistens, while Woodland is surrounded by blue shadow.
“None of Woodland’s photos depicting a subject draped in chains…share substantial similarities with Hill’s photo of himself wrapped in chains. The idea in each of the photos is the same—the provocative image of a Black man in chains. But that idea is not protected—indeed, it is a common motif in many pieces of art. Only the expression through the selection and arrangement of objective elements receives copyright protection. And in looking at the selection and arrangement, we conclude there is little in common.”
Unlawful Appropriation
Turning to whether Woodland had sufficiently pled unlawful appropriation, Lee pointed out that, to meet that burden, a plaintiff must show that the works share substantial similarities. Whether that showing is made, he said, is determined by a two-part inquiry—the extrinsic test, which compares objective overlaps in protectable expression, and the intrinsic prong, which evaluates parallels based on the point of view of a reasonable observer.
The extrinsic question may be decided by the court as a matter of law. Failure to satisfy the objective inquiry is fatal to the plaintiff’s claim.
Under that inquiry, Lee remarked that “the individual elements in photographs—the poses, lighting, costumes, and makeup” are unprotected, while the photographer’s selection and arrangement of these factors will be deemed protected if they are sufficiently original.
Comparing the selection and arrangement of the elements of the purportedly similar photographs, Lee commented that “any likeness…is found largely in the subjects’ poses” and concluded that “[b]ecause Hill’s photos share few similarities with Woodland’s…none are substantially similar.”
The case is Woodland v. Hill, 23-55418.
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