Interesting argument in copyright infringement case involving Harper’s Bazaar India, celebrity news agency

02 July 2024

Ranjan Narula, Managing Partner, RNA, Technology and IP Attorneys, Gurugram

According to Ranjan Narula, managing partner at RNA, Technology and IP Attorneys in Gurugram, TV Today Network, which owns celebrity and fashion magazine Harper’s Bazaar India, raised an interesting argument in its case against Backgrid USA, a popular celebrity news agency. Such an argument delves into whether to deactivate or disable an entire social media page or just the infringing content.

Backgrid issued three copyright strikes against Harper’s Bazaar India for posting 15 Halloween photos owned by Backgrid on Instagram without authorization. Said photos were uploaded in three Instagram posts. This resulted in Meta, owner of Instagram, taking down the magazine’s Instagram page. TV Today sought the restoration of the page before the Grievance Appellate Committee, which upheld Meta’s action to take down the Instagram handle. TV Today proceeded to file a suit against Backgrid before the Delhi High Court, stating that its action of posting the said photos was under the purview of “fair use.” On May 30, 2024, the Delhi High Court ordered Meta to restore the Instagram page of Harper’s Bazaar India.

“TV Today raised an interesting argument that apart from the disputed posts, they have approximately 11,000 other posts in relation to which there are no disputes,” explained Narula. “Therefore, disabling their Instagram handle would effectively dilute their presence on the social media platform.”

“The issue has come up earlier where the courts have frowned upon the practice of disabling the entire website or social media handle by the platform operators instead of disabling the infringing content,” he added. “Though unless it is a repeat infringement, most platforms would only disable the specific content on receiving the copyright infringement complaint. However, the process of restoring your social media handle post repeat infringement claim is complex as exemplified by this case.”

Backgrid agreed to the Instagram handle’s restoration provided that:

TV Today (Plaintiff) acknowledges the copyright of Backgrid in the pictures posted on Instagram;
Plaintiff removes the photos;
Plaintiff further undertakes that it will not violate the copyright in any future material belonging to Backgrid; and
In case of a future breach, Backgrid reserves the right to take legal action via a suit or counterclaim or file a complaint before the relevant online intermediary in the U.S. or elsewhere for injunctive relief and/or damages.

TV Today has complied with these conditions, providing the court with an affidavit a few hours after the case. According to the court, this is merely an interim arrangement which does not stop Backgrid from pursuing its claim to damages amounting approximately to US$250,000, among other claims.

- Espie Angelica A. de Leon

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