Photographer Robert Barbera has just filed
a copyright infringement suit against Versace USA in the Southern District of
New York, claiming that the fashion company did not have the right to publish,
on its Instagram account, a photograph of Jennifer Lopez wearing Versace [see here].
[This is the second time in a row I am mentioning J-Lo in a blog
post…]
Barbera registered the photograph with the
Copyright Office. He did not license it to Versace.
Versace’s Instagram account is used to
promote the brand and features many pictures of products and models, presumably
taken as part of the company’s marketing and public relations strategy. The
account is obviously used as a promotional tool.
 |
| Is Versace in hot cappuccino? |
Copyright
Management Information and Moral Rights
Barbera claims copyright infringement and
also alleges that Versace “intentionally
and knowingly removed copyright management information identifying Plaintiff as
the photographer of the Photograph,” thus violating 17
U.S.C. § 1202(b), which forbids to intentionally remove or alter any
copyright management information without authorization of the copyright owner.
Copyright management information (CMI) includes,
under Section 1202, the “title and other
information identifying the work, including the information set forth on a
notice of copyright… [t]he name of, and other identifying
information about, the author of a work [and] [t]he name of, and other identifying
information about, the copyright owner of the work, including the information
set forth in a notice of copyright.”
This is an interesting claim as the
Copyright Office has just published its study of attribution and
integrity rights in the United States. It addresses the issue of CMI
and notes (p.86) that “[i]t is common practice in the digital world
for CMI to be stripped from works, disconnecting a work from its authorship and
ownership information” and further notes that the provisions of section
1202 “provide a form of quasi-moral
rights protection by effectively preserving the names of authors, owners, and
other creators in connection with their works.”
In our case, Plaintiff claims that Versace
removed the CMI “intentionally, knowingly
and with the intent to induce, enable, facilitate, or conceal their
infringement of Plaintiff’s copyright in the Photograph. Versace also knew, or
should have known, that such falsification, alteration and/or removal of said
copyright management information would induce, enable, facilitate, or conceal
their infringement of Plaintiff’s copyright in the Photograph.”
Could
First Amendment be a Defense?
What about originality? The photograph has
been registered and thus was deemed original enough to be protected by
copyright. Yet, the pose, the angle, the light, are all quite mundane. What is
original in the picture is the striking pattern of the Versace outfit worn by
Miss Lopez.
While fashion designs are not protected by
copyright in the US, with
a few rare exceptions, patterns are protected and the one adorning
the cat suit outfit featured in the allegedly infringing photograph is
certainly original enough to be protected by copyright. However, Versace could
not claim infringement as the picture is protected by the First Amendment: it
was taken at a public event, the 2018 MTV Video Music Awards, and Versace used
#VMAs as a hashtag. Could posting the picture on its corporate account be
protected by the First Amendment? It certainly could be argued.
What about J.Lo.? By thus appearing in the
Versace account, dressed in a Versace outfit, her likeness is used for
commercial purpose. If this use is unauthorized, she could file a right of
publicity suit. However, Versace could then also use the First Amendment as a
defense.
However, it is possible, even likely, that
the famous singer and actress has an agreement with Versace and that therefore
the use of her likeness is authorized. She is one of the #Versacecelebrities,
another hashtag used in the post, and has been wearing the brand for years, making
headlines sometimes doing so. She was recently
nominated CFDA's 2019 Fashion Icon. I won’t write about her in my
next blog post.
Image is courtesy of Flickr user irene. under a CC BY-ND 2.0 license.
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