Fashion snaps from news sites: a copyright fair dealing or infringement?

Members of British and European royal families have contributed to many legal developments over the past few years. Consider, for example, Prince Charles’ successful breach of confidence and privacy claims in relation to extracts from his personal diaries (see here and here), and the European Court of Human Rights’ ruling that the publication of photographs of Princess Caroline and her family violated her right to privacy under the European Convention on Human Rights (see here).

Royals have even been instrumental in the development of copyright law in Australia. In Meskenas v ACP Publishing Pty Ltd (see here), the Federal Magistrates’ Court handed down the first Australian judgment on quantum of damages for infringement of moral rights (also see our update here). The moral rights in question were those of Mr Meskenas, who had painted a portrait of Victor Chang. The case arose when Woman’s Day published a photograph of Princess Mary standing beside the portrait, and, in the accompanying caption, incorrectly attributed the portrait to another artist.

Following this illustrious tradition, we report on the latest IP + royal family combination, brought to our attention by a Sydney Morning Herald article (available here)…

In late September 2011, Kate Middleton, the Duchess of Cambridge, wore a Collette Dinnigan dress to the wedding of a close friend. Dinnigan, understandably keen to publicise this, had her press agency issue a media release which included photographs of the Duchess wearing the dress. The photographs belonged to Ikon Pictures, a London-based agency. One of the photographs was taken by Niraj Tanna, a “royal photographer”, and the director of Ikon. The photographs were used without Ikon’s permission and without any payment being made to Ikon. According to the SMH, Tanna believes that Dinnigan’s team downloaded the photographs from an article featured on the Daily Mail’s website (see here). The press release was then widely disseminated throughout Australia, including on local fashion websites.

Tanna has estimated that it would have cost Dinnigan £4500 – £5000 (or approximately AUD $7150 – $7950) to purchase the pictures from Ikon. Perhaps more significantly, the SMH reports that the use of the photographs in the press release may have stymied Ikon’s arrangement with Woman’s Day for an “Australian exclusive” on the story.

Tanna has announced his intention to commence proceedings for copyright infringement, and, according to his solicitors, will be seeking exemplary damages due to the “flagrancy” of the infringement.

Dinnigan’s PR agency has indicated that Dinnigan will rely on the fair dealing exception of ‘reporting the news’ (contained in s 42 of the Copyright Act 1968) to resist the copyright infringement claim. More specifically, Dinnigan will argue that the press release “was for the purpose of reporting on a news event that was current at the time, namely that the Duchess of Cambridge was wearing a Collette Dinnigan dress”.

When considering this argument, the court will likely have to deal with the ‘imponderable or elusive distinction between news and entertainment’ (see TCN Channel Nine Pty Ltd v Network Ten Ltd, available here; and also Nine Network Australia v Australian Broadcasting Corporation, available here). Although fashion reporting appears to be relatively unchartered territory for copyright law, one can imagine that the news/entertainment distinction could have serious implications for use of the s 42 exception in this context.

Interestingly, Dinnigan has also been a complainant in IP matters, taking a robust approach to copy-cat designs which are perhaps an inevitable by-product of such a successful fashion label. For instance, an unrelated claim brought by Dinnigan against Colette Accessories Pty Ltd has recently been discontinued (see here).

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