Someone takes a photograph of your fashion design at a trade show
without your permission. Do you have any cause to complain?
Copyright will protect your design if it can be considered to be a ‘work of artistic craftsmanship’. There is unfortunately no hard and fast rule governing what will be deemed by the Court to be a ‘work of artistic craftsmanship’ and many fashion designs which have come before the Court have failed the test. By way of example, the Courts on one occasion declined to find that garments, which were shown to sell for £1,000 each and which had been exhibited in the Victoria and Albert Museum could be ‘works of artistic craftsmanship’ since they were of a simple shape and mass produced. If the work is a ‘one off’ and was created using a high degree of workmanship with intricate shape/ornamentation, the likelihood of copyright protection will be higher. Each item will however need to be judged on its own merits.
Damages for use of the infringing photograph:
If the garment in question can be regarded as a ‘work of artistic craftsmanship’ then it will benefit from copyright protection and someone taking a photograph of the work will infringe that copyright – it does not matter that the garment is a 3D article and the photograph a 2D one. Remedies for copyright infringement include an injunction preventing the infringer from using the infringing copy and damages to compensate the copyright owner. If the infringer has not made any use of the infringing photograph however, it may be difficult to show that the copyright owner has suffered any specific damage and so financial compensation will be minimal if any. If however the infringer has used the infringing photograph for commercial purposes (e.g. in a magazine feature for
example) then the copyright owner may be able argue that they have suffered loss based on, say, the licence fee they would have charged for the photograph to be used.
Damages for production of garments from the infringing photograph:
If the person taking the photograph goes on to produce copies of the garment then, to the extent that the original garment could be deemed to be a ‘work of artistic craftsmanship’, those copies may infringe the copyright in the original. In such a case, the copyright owner may be able to claim all profits made by the infringer from the sale of those infringing articles.
Design right is the usual protection relied on by those in the fashion industry and the garment will benefit from design right protection regardless of artistic merit (provided it is ‘novel’) for a period of 3 years following it being first made available to the public (under EU unregistered Community design right). Design right prohibits third parties from making articles to the design or from making design documents recording the design to allow a third party to make such articles. It is doubtful that the mere creation of a photograph of the garment will infringe the design right but, if copies of the garment are made as a result then those articles will infringe the design right in the original garment. Remedies for design right infringement are similar to those for copyright infringement and include an injunction preventing the infringer from using the infringing copy and damages to compensate the design right owner. If articles copied from the garment have been sold, the design right owner may be able to claim all profits made by the infringer from the sale of those infringing articles.
Preventative measures:
The law in this area is complicated and legal action is expensive. It is therefore a good idea, if possible, to introduce some terms and conditions of entry to shows or exhibitions – the terms and conditions would be printed on the back of tickets and would prohibit the taking of photographs as a condition of entry (or the subsequent commercial exploitation of such a photograph). There would then be an additional, somewhat easier complaint for breach of contract if anyone took/exploited photographs.
You can also display a sign at your stand, which clearly indicates that nobody should take photographs without your permission. Take a business card from anybody, who takes photographs with your permission, and ask for examples of any subsequent use of the photograph (e.g. in the press, blogs etc.) so that you can monitor dissemination/promotion of your work and follow up if necessary.
This fact sheet was written by Hayley Devlin, Solicitor for Hamlins LLP, tel: 020 7355 6048; email: hdevlin@hamlins.co.uk
Image: Hana Fujimoto: www.hanafujimoto.com
