Business Law Intellectual Property

Can I Use the Photographs? (Part 2)

You’ve hired the photographer and have a written agreement that makes you the owner of all photographs taken.  But if you think nothing could go wrong now, you may not have thought of everything.  Attention must be paid to what is in the photographs themselves.

Through the Viewfinder of an Old Medium Format CameraThe scope of copyright extends to many two and three dimensional designs.  So, if you manufacture useful products made from a fabric that has been lawfully made by, or with the permission of, the design’s creator, then you are entitled to publish photographs of those products.  The key words here are “lawfully made” and “with permission”.  Claims of copyright infringement in fabric designs are a growing problem. But this is not the only danger.

Outdoor urban settings, featuring graffiti, murals, or sculptures, also can produce claims.  Ask Just Cavalli or the US Postal Service.  Just Cavalli is confronting a suit in California by graffiti artists, who claim their work was copied on Just Cavalli’s apparel designs.  And the United States Postal Service has to pay millions to the sculptor of the Korean War Memorial for using a photograph of the sculpture on a stamp.  Both the graffiti and the sculpture were protected by copyright.  Therefore, any use of them without permission in a photograph, including as a cool setting for your fashion, would be infringing.

Props and “set decoration” have also generated litigation.  Rug and quilt patterns, crib mobiles, stuffed animals and dolls can enjoy copyright protection and their designers have brought suits when they have been used without permission in films and advertisements.  So take care that the adorable baby modeling your clothes is not holding a protected toy or other prop that you didn’t create.  Even items such as lamps can be protected by copyright, if they include sculptural forms which could exist independently.

Finally, while you want your photographer to be the next Richard Avedon, it is not a good idea to copy the composition of a famous photograph.  That too can be copyright infringement.

Credit: Helene M. Freeman

See previous post…”Can I Use the Photographs? (Part 1)

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For a recent article by New York Times reporters Sydney Ember and Rachel Abrams on brands and their use, sometimes without permission, of consumers’ own photographs posted on social media showcasing branded items, click here.

By Fashion Industry Law Blog

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