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.