The Case of Kylie Jenner’s ‘Copied’ Instagram Pose

By alaina.demopoulos@thedailybeast.com (Alaina Demopoulos)
Photo Illustration by The Daily Beast/Getty

The Kardashian-Jenner clan’s alleged offenses are many, from cultural appropriation claims to all those pets that mysteriously disappear. Even casual followers of the family probably know that their social media accounts are a goldmine of misdeeds. But in the latest mini-controversy, let it be said: Kylie Jenner did no wrong. 

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Per Cosmopolitan, where editors keep a gleeful tally of these types of stories: on Sunday, Jenner posted a photo showing her in “vacation mode.” Your “vacation mode” might be drinking a $14 Guinness at an airport bar while you wait for a delayed plane; Jenner’s is fully nude, sitting atop a stone pool deck, legs crossed and breasts covered, a straw hat tall enough to ride a rollercoaster obstructing her head. The wealth flex has since amassed over 10 million likes on Instagram. 

What would become just another money shot quickly formed into a late day mini-scandal when the influencer Amanda Ensing decided to comment on the snap. Ensing is a woman I did not know existed until around 2 p.m. Monday, but her Instagram account documents a life spent frolicking in a field of sunflowers and sipping frozen drinks out of pineapples, so clearly she is doing something right with her life. 

Around a month ago, Ensing went on a “vacation mode” of her own in Mexico, where she also stripped down and crossed her legs, bravely sitting her bare self down on the pavement. Just like Kylie, her fingers sport a mile-long neon manicure, she wears a shell anklet and a telltale straw hat. I assume the naked shot is meant to communicate “sex”; to me it harks back not to coitus but the act of frying rice on a Hibachi grill—seriously, the ground looks very hot! I can only hope the Instagram boyfriend Ensing often calls upon to grab her “peach emoji” totes a potent sunscreen, too. 

Ensing commented on Jenner’s copycat post, writing, “This photo looks awfully familiar  🧐😅,” but the world’s youngest billionaire had no patience for plagiarism accusations.  

Jenner replied directly to Ensing’s burn with her own zinger: “from the words of Kim K ur not on my mood board but i did get my inspo off Pinterest.” Translation: Ensing’s pose was a rather basic one that can be found in droves just by searching #Tulum or #Vacay hashtags. 

Of course, no one really owns the act of reclining nude in a straw hat. Art can be a reflection of our deepest desires, and who doesn’t want to be tan and pants-less on the beach? As far back as 1892, the French impressionist Pierre-Auguste Renoir produced the oil on canvas “Nude in a Straw Hat.” Its title serves as description: A pink-skinned young woman with ample red hair covering her bosom sits staring over an expansive lake, with no clothes except a flower-adorned boater over her head. 

The Hungarian fashion photographer Martin Munkácsi borrowed Renoir’s title for a 1944 Harper’s Bazaar shoot, which resulted in one of the glossy’s first-ever nude photographs. In the black-and-white shot, a model straddles a log. Her back is to us, and though the straw hat is supposedly the star of the show, my eyes were drawn to the three delicate, bony bumps along her spine. 

In 2011, the artist Giuliano Bekor released a series of  “Nude Men in Couture Hats,” looking much like the previous examples, except starring intimidatingly chiseled male models. Just last year, Bella Hadid welcomed summer in Mexico, wearing thong swimsuit bottoms, a Smart Car-sized straw hat, and nothing else. 

Unfortunately for Ensing, her case against Jenner does not have an artfully crossed leg to stand on. Common sense would imply that no one can claim body language as their own. After all, just about every female entrepreneur who graces the cover of Forbes or Fortune is asked to cross her arms and stare directly at the camera. But Jenner also has a court ruling on her side.

As pointed out to me by Susan Scafidi, the founder and director of Fordham University’s Fashion Law Institute, the U.S. District Court for the Southern District of New York ruled in 2005 that “photographers can’t own the idea of the scene, just [their] specific expression.” 

This came about when a photographer named Bill Diodato sued Kate Spade, the company, after he submitted a photo to the brand. The (sort of gross) conceit of his image was a shot of a woman’s feet seen peeking underneath a bathroom stall. She wore strappy stilettos and lace panties hanging down to her ankles, with a satchel on the floor next to her. 

Later, the brand created its own version of the ad, shot in-house but looking much like Diodato’s image. He sued, claiming his idea was copyrighted and that the trademark was infringed upon. The court dismissed the charges, since Diodato’s photo wasn’t used—just the idea and posturing. 

Per the judge’s opinion: “Although the idea of using a woman sitting on a toilet to showcase stylish shoes and other fashion accessories is a clever one, it is an idea that has been used often in popular culture.” 

This is why, every few years, a new “Instagram pose” floods our feeds, with everyone from Emily Ratajkowski to your old neighbor who won’t stop posting about her baby trying it out for themselves. First it was duck lips to look cuter (very gauche now, please don’t attempt), then it was Bambi Foot to look taller. Squatting, blocking the sun with your hands, and flipping hair have all had their days, too.

Now, I guess Jenner and Ensing have spoken: The time has come for us to take off our clothes and hide under hats. Just please wear sunscreen, and careful of burning your bum.

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