For many designers, the wide dissemination of photographs of a collection is a vital part of any marketing strategy, particularly online. Most designers want photographs of their collections picked up by the media, posted on popular fashion-based social networking sites and blogs, shared between consumers, and discussed in a public forum.
With photographs so freely available and accessible on the internet to download and disseminate, the boundaries of authorised and unauthorised use of photographs have become unclear to many designers and consumers. So to what extent (if any) can you use someone else’s photographs to promote your brand where those photographs depict your designs? Can you post photographs that are not owned by you on your website, on your Facebook page, or in blogs? And what happens if your photographs are used without your permission in a way that is unfavourable to your designs or your brand, or used in a way completely unrelated to the designs depicted in the photographs?
An interesting example of these issues received media attention in late 2011. It was reported that Australian fashion brand Collette Dinnigan issued a press release in which photographs of Kate Middleton wearing a Collette Dinnigan dress at a wedding were reproduced without the authority of the copyright owner in the photograph. It was claimed by the copyright owner that the photographs were downloaded from an article featured in the Daily Mail, that the use amounted to copyright infringement and that Collette Dinnigan was liable to pay damages. Collette Dinnigan has claimed the use of the photographs fell within the “fair dealing” defence of copyright infringement as she was reporting on a news event. To date, it appears that no proceedings have been issued in Australia about this issue. However, this example highlights that there are unclear boundaries as to when photographs can be used and for what purposes, and when the “fair dealing” defence can be relied on.
In an era where online communication is paramount, internet users can simply “copy and paste” works they find on the internet in order to use whatever takes their fancy, whether that might be photographs, other graphic design works, or even text. But just because this can be done so easily, doesn’t mean it should be done – at least not without being aware that there may be legal consequences.
Who owns copyright in a photograph? A photographer will usually own copyright in a photograph, unless it was taken by the photographer in the course of employment (in which case the photograph will most likely be owned by the photographer’s employer). This is usually the case even if you have paid the photographer to take photographs of your collection. For other artistic works such as graphic designs and literary works, the author of the work is usually the copyright owner.
In Australia there is no registration system for copyright. Works including photographs are automatically protected as copyright works when they come into existence, and protection lasts for a period of the life of the author (or photographer) plus 70 years. Copyright protection therefore exists automatically once a work is created. For this reason you should be aware that if you engage a photographer to shoot your collection, you need to be aware of the scope of your licence to use the photographs, or negotiate an assignment of the copyright in the photographs to you. You should be careful to ensure that everyone on the shoot knows in advance what rights they have (if any) in the photographs taken, as this will help you to avoid being tangled in a copyright dispute down the track.
When can you use photographs that are not owned by you? There are many reasons you may want to use photographs available on the internet, including in the promotion of your brand and designs, particularly if those photographs depict your designs as in the Collette Dinnigan example. You might also want to download photographs of other designs for trend reference, or simply share photographs that you love with your customers in the social networking environment. So, can you do this without infringing copyright in the photograph?
Any reproduction (or reproduction of a substantial part) of a photograph, is at face value a copyright infringement, unless you have the authority of the copyright owner to reproduce the photograph.
This means that you may be infringing copyright in a photograph if, without the authority of the owner of the copyright in the photograph, you: • reproduce photographs on mood boards, or in your own trend forecasting; • post photographs on your website; • post photographs on Facebook, in blogs, and on other social networking sites; • upload and reproduce photographs from hard-copy magazines or publications; or • disseminate photographs in press releases or emails.
A lot of these uses of photos are unlikely to land you in hot water (such as use in trend forecasting), but as soon as the photos are used in a more public arena (and therefore are more likely to come to the attention of the copyright owner), you should be aware that there are risks involved.
In Australia, it is a defence to copyright infringement if the use of the photograph amounts to a “fair dealing”. Examples of “fair dealing” include use of the photograph to criticise or review the photograph, or use of the photograph for the purpose of reporting news. However, there are a number of criteria that need to be met to successfully rely on a “fair dealing” defence, and the circumstances in which these fair dealing provisions apply are not always clear cut – so any unauthorised reproduction of a photograph can be a risk.
What about if someone is using my photo? Photographs are usually valuable assets to fashion brands and photographers. Designers and photographers should monitor the internet to ensure that there is no unauthorised use of the photograph, and to ensure that photographs are not being used in a way that is unfavourable to your brand or to the photograph itself.
While the Collette Dinnigan example is a clear example of using a photo to promote a brand, photos (or other works) may also be used for purposes which are completely unrelated to the brand depicted in the photo. It is not uncommon for someone to see an image they like online, and use it to promote their own event or a completely unrelated product.
Regardless of what the photo or other work is used for, if its use is unauthorised it is likely to be a copyright infringement, even though the use may be unrelated to the subject matter of the photo.
If you believe that your own work has been reproduced or used without your authority, there are things you can do to enforce your rights. Social networking sites such as Facebook have fairly straight forward complaint procedures for removing pages that reproduce a copyright work without the permission of a copyright owner. Using these “take down” procedures can be a very cost-effective and fast way to remove works that have been posted without your authority.
Whether you are a designer, photographer or a consumer, you should be aware that just because you can easily download, copy or disseminate a photo or other work on the internet, doesn’t mean you are allowed to. Any unauthorised reproduction of a photograph may amount to copyright infringement, and you may be pursued for significant damages depending upon the nature and extent of the infringement. If you want to use a photograph – obtain authorisation first. If you are the owner of copyright in a photograph, monitor its use and be proactive in protecting your works.
For more information on legal issues affecting the fashion industry, Middletons, as a proud Supporting Partner of L’Oréal Melbourne Fashion Festival, will once again host its Fashion Law Breakfast during the festival. Register online at www.middletons.com/events
Lisa Egan is a partner in Middletons’ Melbourne office and can be contacted at lisa.egan@middletons.com
PHOTO: WENDELL LEVI TEODORO @ZEDUCE.ORG
