Photos in a Similar Style Aren’t Copyright-Infringing–Woodland v. Lil Nas X

The court summarizes the case:

Rodney Woodland, a freelance artist and model, posts semi-naked photographs of himself in different poses on Instagram. Montero Lamar Hill, better known as the recording artist Lil Nas X, also has an Instagram account—and he, too, shares semi-naked photos of himself in varying poses (as one apparently does on Instagram these days).

I will note, to the relief of everyone, that I have not posted semi-naked (or Full Monty) photos of myself to Instagram, social media, or anywhere else. I guess that makes me old-school.

The court displayed all of the photos side-by-side, so of course we’re going to look at them. As you’ll see shortly, Woodland’s photos often strategically hide his goodies but put most everything else on display. So I think this is a SFW post.

Regarding Woodland’s posts, the court adds:

The photos at issue were posted on his Instagram account between August 2018 and July 2021. Each of Woodland’s twelve posts garnered between eight and seventy-five “likes.”

I don’t do Instagram, so I have never received any “likes” at all there. But I’m pretty sure getting 8-75 likes at Instagram, especially for posts that might be considered thirst traps, isn’t impressive, and I think the court is silently judging that. 🤏

As further evidence that the court is judging Woodland’s minimal engagement, the fact recitation continues:

Between March and October 2021, Hill posted eight photographs on Instagram that Woodland claims infringed on twelve of his copyrighted photographs. Hill’s posts on Instagram receive hundreds of thousands, and sometimes millions, of “likes.”

Lack of Access

Courts have consistently held that posting works on the Internet, without more, doesn’t ensure that the defendant had “access” to them for purposes of copying-in-fact. The plaintiff must either show a chain of access to the precedent work or show that the precedent works were “widely disseminated” such that we can infer the defendant had access. “Woodland concedes that his works are not widely disseminated, given that his Instagram photos received between eight and seventy-five ‘likes’ only.”

The court has a lot to say regarding the chain of access:

the Internet makes it easier than ever to reach an artist’s copyrightable works…[but it] is not easy to stumble upon a single webpage amid the “vast quantity of material on the Internet.”…

Platforms like Instagram are designed to facilitate the discovery and sharing of available content by using algorithms to recommend tailored content to consumers. No longer do people have to search for specific content in the vast expanse of the Internet; in today’s digital landscape, social media networks and other platforms continually push individualized content to consumers based on each individual’s preferences, usage, and habits. And by expanding a content creator’s reach, these digital platforms can increase the chances that other people will see—i.e., have access to—the creator’s copyrighted content.

Note how the court seems to be validating the editorial curation and discovery functions of “platforms.” Remember this perspective when the Ninth Circuit analyzes the various censorial state laws designed to control or strip away “platforms'” curatorial or discovery efforts.

The court continues:

Consider the proverbial pajama-clad blogger from the early 2000s who would share his musings on his personal Internet blog while sitting in his mother’s basement. Unless someone intentionally searched for that blog website, almost no one (except perhaps his hapless mother who encouraged him to go outside and find gainful employment) would have likely viewed his blog posts, even though theoretically they were available to everyone. But in the age of Twitter/X and other content-sharing platforms, that erstwhile blogger’s reach could multiply dramatically as others’ “views” and “likes” on Twitter/X may push his posts to a larger audience under that platform’s algorithm. Indeed, content from an ordinary person with a few followers can now go “viral” and reach millions of people.

First of all, I feel personally attacked by the court’s hyper-stereotyped discussion of “pajama-clad bloggers.” I will have you know that I am fully showered and wearing (mostly) clean clothes (and not my jammies) as I write this blog post.

Second of all, my “hapless” mom never read my blog. It was too in the weeds for her. So I guess my blog so obscure that even my mom wouldn’t read it.

Third, the court is correct that a blog post without any promotion can be the tree that falls in the forest that no one hears. The court only acknowledges search as a form of blog distribution, which is true but incomplete. Thus, the court is overlooking many other forms of blogger distribution, including email notifications, RSS, inbound links, and blog aggregators. Even in the old days, blog hosting platforms may have provided some promotion functions. The court is seems to treating social media as if it invented virality and online promotion/distribution, which is completely ahistorical.

This takes the court to its punchline:

social 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, as explained below, Woodland has fallen short here.

I’m trying not to read the last sentence as a sexual metaphor. 🍆

The court explains why Woodland’s “access” falls “short”:

While Instagram may make a user’s content more widely accessible, it is not enough to simply allege that Hill is an active user of Instagram and thus had a reasonable possibility of viewing Woodland’s photos. As the district court explained, there are over a billion users and many more posts on Instagram. The mere fact that Hill uses Instagram and that Woodland’s photos are on Instagram raises no more than a “bare possibility” that Hill viewed Woodland’s photos….

Woodland contends that Instagram’s recommendation algorithm increased the chances that Hill viewed Woodland’s works. According to Woodland, because the content that Hill and Woodland post to their respective Instagram profiles “shares in sub-genres of similar content, involving artistic nude Black male modeling,” Instagram’s algorithm would likely have recommended Woodland’s posts to Hill….

But Woodland’s theory is rooted in speculation. 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….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.

Another way of reading this is that a big star like Lil Nas X probably doesn’t have time to muck around in Instagram’s long-tail of content. But consider how future plaintiffs might look for other evidence of genre-specific promotions and weaponize that possibility to bolster their otherwise tenuous case of access.

Woodland responded that he wasn’t alleging the imitation of just 1 photo, but of 12, which suggests serial imitation. The court responds:

His argument also fails as a logical matter. Even assuming Hill’s works share similarities with Woodland’s, that does not necessarily show access. The mere existence of multiple works does not prove access.

I leave it to you to decide if you think Lil Nas X or one of his people saw Woodland’s Instagram account. I’m not familiar enough with the genre of “artistic nude Black male modeling” to know if Lil Nas X’s series of photos was scenes a faire for that genre or intentionally evocative of Woodland’s work.

Lack of Copying

The court says Woodland also fails because “none of Hill’s photographs are substantially similar to Woodland’s.” Per Rentmeester (the Michael Jordan grand jete case), “the individual elements in photographs—the poses, lighting, costumes, and makeup—are not themselves protected from infringement.” In this case, “Hill’s photos share few similarities with Woodland’s—and certainly no more similarities than shared by Nike’s and Rentmeester’s photos.”

The court then analyzes the photos one-by-one.

“The photos both depict a Black man folded in on himself, but the similarities stop there. The objective elements in the photos—the men’s poses, colors, lighting, backgrounds, etc.—are different, and so the selection and arrangement of these elements also widely differ.”

“The commonalities go no further than the depiction of a man reclining on his side with certain body parts strategically covered—a common pose in photos of male models and actors. In any event, the models’ specific poses differ, particularly in the placement of arms and hands. Additionally, the backgrounds, colors, lighting, perspectives, and accessories on the main subject vary widely.”

“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.”

“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…The physical features of the subjects, arrangements of the chains, backgrounds, lighting, angles, colors, and positions of the subjects in the frames all differ.”

“The only similarity between Woodland’s work titled “To the Moon” and Hill’s photo is the depiction of a man in an atmospheric setting with his head angled away from the camera and feet nearer to the viewer. In all other respects, the photos differ in color, subject, pose, lighting, spacing, and background.”

“Hill positioned his arms similarly to those of Woodland’s subject, who is also a Black man with feet near the viewer, but the left arm of Woodland’s subject cuts out of frame at the elbow. Hill’s facial expression and the position of his lower body differ from that of Woodland’s subject, and none of the other elements in the photo—background, lighting, angle, and color—are similar.”

“Woodland’s work “Tiedye” and Hill’s photo share nothing in common beyond depicting a man standing with arms outstretched—an unprotectable idea.” (For me, Lil Nas X’s photo brought to mind Jimi Hendrix’s Axis: Bold as Love album cover).

“Woodland’s photo titled “Polkadot Pose” has little in common with Hill’s photo other than that each photo shows a naked Black man whose front body is hidden from view.”

(I’m getting a strong Flashdance vibe here).

The court says:

Unlike Hill, Woodland’s subject in SEE SAW has folded his arms across his chest, and his right knee is folded at a sharp angle. The subject is in front of a yellow wall and a white door, resting on a stool, and the bottom of the subject’s body is in shadow. Hill’s body, by contrast, is glistening and none of him is in shadow.

Woodland’s subject in At Rest has bent his left knee instead of his right. In further contrast to Hill’s photo, the subject is lying on a stool covered with a sheet. The light in Woodland’s photo is above the subject and creates shadows, while Hill’s photo does not feature a source of light. Both of Woodland’s photos are realistic, while the setting of Hill’s photo features fantastical elements.

As you can see, the court is pretty exacting when doing the compare/contrast between photos.

Implications

Now that you’ve seen the side-by-side photos, where do you stand on the question of access? Did Lil Nas X independently effectuate photos in the same style/genre? Did Lil Nas X draw inspiration from Woodland, but execute it differently? Or did Lil Nas X take too much of Woodland’s expression? I can see why Woodland might have felt frustrated, but given the extensive differences between Woodland’s and Lil Nas X’s photos (almost none of them looked remotely similar to me on first glance), I also could see why many copyright attorneys would have declined this case. We’ll get more information about the legitimacy of this case if Lil Nas X requests and gets a 505 fee shift.

[Note: in the district court, Woodland was represented by Michael Richard Shapiro. On appeal, Woodland was represented by Andrew Grimm of the Digital Justice Foundation.]

Woodland’s suit reminded me of the complaints of artists and photographers regarding the similarity of generative AI outputs. When the outputs are rendered in the same style, of course they will have enough similarity to make you think of other entries in the style. But that level of cognitive association isn’t enough for copyright infringement.

The court’s musings about the standards for access could prove more important than the similarity discussion. If copyright owners can survive a motion to dismiss simply by showing that they posted their works onto social media, where the works may or may not have benefited from algorithmic amplification, then it will enable a lot of meritless lawsuits trolling for settlements. It depends on whether other courts strictly require that the defendant “followed, liked, or otherwise interacted with posts or accounts connected to or similar to” the plaintiffs to establish access, or if courts will entertain a wider range of arguments about how the algorithms might have surfaced their content. But even the narrower standard invites a lot of tendentious data-mining about the defendants’ social media activities.

Instagram wasn’t a part of this appeal, but the court’s discussion about the importance of its algorithmic promotion does have relevance for the many appeals steaming to the Ninth Circuit involving state censorship of social media algorithmic promotion functions.

Case Citation: Woodland v. Hill, 2025 WL 1417103 (9th Cir. May 16, 2025)