In 2014, fashion brand Antonia Marras put nearly 50 looks on the runway during Milan Fashion Week. The theme for the collection was ‘the wolf and the moon’ and many of the pieces bore an image of a wolf which had been taken by photographer Daniel J. Cox.
Marras never obtained permission from Cox to use the wolf image and Cox subsequently issued court proceedings in Italy for infringement of the copyright in the photograph.
The court agreed with Cox and found that the wolf image was entitled to enhanced protection under Italy’s copyright law because the photograph was one of “artistic and creative character” (as opposed to a “simple” photograph).
The court concluded that the commercial use of the wolf image by Marras was a clear violation of the author’s copyright and rejected the fashion brand’s arguments that it should have no liability because the wolf image was publicly available on Google.
On the contrary, the court confirmed that the onus is on internet users to ascertain the copyright status of images that they may find online before they reproduce them.
The court ultimately ordered the brand to pay the equivalent of approximately £45,000 in damages and legal fees and ordered the brand to refrain from infringing the author’s copyright in the future.
The Marras/Cox saga gives rise to a number of important points both for photographers and for those operating in the fashion industry:
This is a cautionary tale for those operating in the fashion industry where posting and sharing images on Instagram, Twitter and Facebook is common.
Not only is fashion imagery shared and reshared at lightning speed and in large volumes, very often the imagery is of unknown provenance. And if you are operating in the fashion industry during London, Milan, New York or Paris fashion week, you could perhaps be forgiven for feeling like you just don’t have the time to track down the author of every image and photograph.
However, the default legal position is that authors of artistic works (including photographs) are the first owners of the copyright in those works, and as such they have exclusive rights to control their use (subject to certain exceptions relating to fair use or fair dealing).
Therefore, if you are operating in the fashion industry and you are contemplating making use of an image or a photograph that you have not taken yourself, stop and investigate and take specialist legal advice before you proceed. The cost consequences could be significant if you fail to do so, particularly if you subsequently make substantial commercial use of the image without permission.
For photographers, this is a success story, but it also demonstrates the potential losses that can be suffered by photographers, designers and other artists if they do not understand, protect and enforce their rights.
Countless artists regularly have their rights infringed by large fashion brands and very often they don’t do anything about it. Sometimes, that is because the artist actually benefits from the infringement by gaining exposure for their work, and so they let it slide. But a lot of the time it is because the artist doesn’t understand the scope of their rights or they don’t feel that they can access or afford the specialist IP advice and support they need to protect their business and their art.
Therefore, if you are a photographer, designer or other artist, know your rights! And if/when you discover infringement, take specialist IP advice and take action as early as possible, because unfortunately in some case sitting on your rights can mean losing your rights, and tolerating infringement for too long can make it even more difficult to stamp it out later.
Briffa lawyers are experts in all aspects of contentious and non-contentious intellectual property law and practice. If you have a query regarding copyright, trade marks, design rights, patents or any other intellectual property rights, please drop us an email or give us a call and we will be happy to arrange a free consultation with one of our specialist IP lawyers.
Written by Eamon Chawke, Solicitor