Woodland v. Hill

Ninth Circuit affirms dismissal of copyright infringement claim against musician Lil Nas X, finding that mere availability of plaintiff influencer’s photographs on Instagram does not amount to access to those photographs and that defendant’s Instagram photographs were not substantially similar to plaintiff’s photographs in selection and arrangement of constituent elements.

Rodney Woodland, a freelance artist, model and content creator who frequently posts stylized, semi-obscured nude photographs of himself on Instagram, brought suit against Montero Lamar Hill, better known as Lil Nas X, alleging that Lil Nas X—who also has a penchant for posting stylized, semi-obscured nude photographs of himself on Instagram—had unlawfully copied 12 photographs that Woodland had posted on Instagram and was therefore liable for copyright infringement. The district court found both that Woodland failed to allege that Lil Nas X had viewed Woodland’s photographs on Instagram, and therefore made no showing of access to the copyright works, and that the allegedly infringing photographs were not substantially similar to Woodland’s photographs. The district court dismissed the copyright infringement claim, and Woodland appealed to the Ninth Circuit.

By way of preamble, the Ninth Circuit explained that in order for a plaintiff to allege copyright infringement, they must allege (1) that the defendant copied the work at issue and (2) that the defendant copied enough of the plaintiff’s protected expression to render the allegedly infringing work substantially similar to the original work. The Ninth Circuit agreed with the district court that, in this instance, Woodland had failed to plead either element.

Dealing first with copying, the Ninth Circuit explained that Woodland’s allegations failed because he did not plausibly allege that Lil Nas X had access to his photographs. In order to plead access, a plaintiff generally must provide either (1) “evidence of a chain of events between the plaintiff’s work and defendant[’s] access to that work” that raises a “reasonable possibility” that the defendant viewed the plaintiff’s work or (2) “evidence that the plaintiff’s work has been widely disseminated.” Woodland could not plead the latter, since he conceded that his photographs were not widely disseminated. As for the former, the Ninth Circuit held that Woodland could not plead a reasonable possibility that Lil Nas X had viewed his photographs. The court noted that while the internet and social media have made it easier for plaintiffs to allege that their work was available to defendants, availability is not the same thing as access. And in the context of social media platforms, plaintiffs need to be able to show that “the defendants had a reasonable chance of seeing [plaintiffs’] work under that platform’s algorithm or content-sharing policy.” 

Here, Woodland could not make such a showing because, while Woodland and Lil Nas X posted similar content to one another, there was no factual support for a finding that one person posting similar content to another person results in Instagram pushing that former person’s content to the latter. Accordingly, there was no plausible allegation of access and consequently no plausible allegation of copying. The court also rejected Woodland’s argument that the “sheer number of allegedly similar photos … raise[d] an inference of copying.” The court made clear that “the mere existence of multiple works does not prove access” and there was nothing in the Copyright Act or case law to the contrary.

Turning to unlawful appropriation, the Ninth Circuit found that Woodland could not show any substantial similarity between the protectable elements of Woodland’s photographs and Lil Nas X’s allegedly infringing photographs. The court explained that individual elements of photographs—such as the lighting, poses, costumes, etc.—are not themselves subject to protection under the Copyright Act. Instead, the Copyright Act protects the selection and arrangement of those elements as long as said selection and arrangement are sufficiently original. 

The court acknowledged that it may be difficult to determine when exactly a similarity in selection and arrangement becomes substantial, but pointed to its 2018 decision in Rentmeester v. Nike, Inc. as instructive. In that case, the Ninth Circuit was faced with two photographs of Michael Jordan leaping toward a basketball net with his body in a grand jeté pose. The Ninth Circuit held that, while the photos had the same general concept, there were sufficient “differences in the positions of Jordan’s limbs, the backgrounds and foregrounds, the presence or lack of sun, and the position of the basketball hoop and Jordan’s body in the frame” for a finding that the photographs were not substantially similar as a matter of law.

Applying Rentmeester to the two sets of Instagram photographs, the Ninth Circuit found that none of Lil Nas X’s photographs was  substantially similar to Woodland’s. Although the photographs shared some similarities—namely, the poses adopted by Woodland and Lil Nas X in their respective photographs—there were few other similarities between the photographs and little to no similarity between the selection and arrangement of their individual elements. Indeed, the court noted that there was more that differentiated the photographs from one another than made them similar, and found those differences dispositive. It held that there had been no unlawful appropriation, dooming Woodland’s copyright claim.

Summary prepared by David Grossman and Edward Delman