Is It Copyright Infringement On Fashion Design To Post Photos From A Fashion Show Online?
from the certainly-hope-not dept
For many years, we’ve discussed how the fashion industry is a great example of an industry that is more innovative, more prolific and more dynamic due to the lack of intellectual property protection. In fact studies have repeatedly shown that it’s the very lack of copyright over clothing designs that has made the overall industry so successful. It encourages continued innovation and adaptation, while the fact that there are knockoffs actually helps to increase the value of original authentic designs, while permeating design concepts throughout the fashion world.
However, that hasn’t stopped designers from trying to gain copyright advantages over clothing designs, and one ongoing case suggests how ridiculous this concept could be. An online publication is being sued by two French fashion designers, not for creating knockoff clothing, but for daring to post photos online of the fashion designers clothing lines, which they demonstrated at a fashion show. The website sent its own photographers to the show (so it’s not a case of them reposting someone else’s photos). A French court sided with the designers (French design protectionism shows up again…), and now the case has moved to the US to see if the designers can collect.
The fact that the case has gotten as far as it has is pretty ridiculous. It’s nearly impossible to see how posting photos you took yourself at a fashion show could violate someone else’s copyright on clothing, but that’s what we get in this world where too many people consider copyright something that provides full and total ownership of a concept, rather than a limited monopoly solely for the incentive to create. While the case right now hinges around the traditional four factors test for fair use, you have to wonder why we’ve never established a simpler test for copyright cases: if the creator knew the infringing action would occur, would they not have created the “content” in the first place? In this case, that seems laughable…
Filed Under: copyright, fashion, fashion show, photos
Comments on “Is It Copyright Infringement On Fashion Design To Post Photos From A Fashion Show Online?”
Filthy Frogs…no one cares about your froggy clothing designs anyway. Go frog yourselves. And the Frog Judges need to pull their head out of their watertight frog asses…
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You do know it was the French who made America’s succession from England possible, right?
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Well, okay. We’ll let this one slide. But now we’re even.
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Yes, and hearing about it becomes tiresome, as it is not a defense for future idiocy.
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Tiresome, yes. “My gosh, that was, like, 200+ years ago!”
It just seems a tad foppish to be so derogatory towards those who helped our country become independent.
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You DO know it was America who gave you a country, right. See world war II were Hitler owned France! :).
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And once again, history rears it’s ugly head.
I don’t see what French help 200 years ago has to do with their views on copyright today.
I also don’t see why American wine made in the exact same way can’t be called champagne, even though it’s not from that region in France.
Really. The French have some dumb ideas that have nothing to do with justice, fairness, or any other virtue and simply have to do with kind of sort of protecting some French people somewhere. Sometimes.
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Right… because knowledge and understanding of the past has absolutely no bearing upon the present. [/sarcasm]
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Ok we admit France helped us become independent. We repaid them. They lost their country and we graciously gave it back to them with little strings attached.
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You DO know that you misspelled seceded from England, correct? 🙂
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I did indeed. Thank you.
“Ok we admit France helped us become independent. We repaid them. They lost their country and we graciously gave it back to them with little strings attached.“
Agreed, so let’s all be adults and refrain from pointless name calling. 🙂
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Damn, I forgot about French Bread, man I love that stuff with Parmesan cheese backed on it…
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Seriously, I like the French they have given us many great things. Like French Fries, French Tips, Franco American Spaghetti and my personal favorite, French Kissing…
Besides, it wasn’t so much a succession as a revolt. But whatever, do I really need to bring up WWII, come on.
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Now this is the kind of troll we need. Someone with informed opinions based on critical analysis.
Not just some jerk offering stupidity.
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shut up or you’ll have “jerk offering stupidity” all over your face…
So, a magazine covers the fashion show, that’s OK. A website covers the show, that’s copyright infringement? (yes, I know no magazine was mentioned, but they cover these shows all the time)
If they didn’t want photos getting out, they shouldn’t have allowed photos at the show.
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EXACTLY…
From Tony: “So, a magazine covers the fashion show, that’s OK. A website covers the show, that’s copyright infringement? (yes, I know no magazine was mentioned, but they cover these shows all the time)
If they didn’t want photos getting out, they shouldn’t have allowed photos at the show.”
EXACTLY…
Litmus test
While the case right now hinges around the traditional four factors test for fair use, you have to wonder why we’ve never established a simpler test for copyright cases: if the creator knew the infringing action would occur, would they not have created the “content” in the first place?
I’m all for getting back to the original intent of copyright, but I don’t think this is a workable litmus test. I mean, if you build a bank, you know it could be robbed at some point, but it doesn’t make robbing a bank legal.
Re: Litmus test
I’m all for getting back to the original intent of copyright, but I don’t think this is a workable litmus test. I mean, if you build a bank, you know it could be robbed at some point, but it doesn’t make robbing a bank legal.
Interesting point, but I don’t believe that applies. We don’t make bank robbing illegal in order to create an incentive to create a bank. We make bank robbing illegal, because it literally takes money away from people.
However, the only purpose of copyright is to serve as incentive to create. Thus, if there can be proof that the creation would have happened regardless of the infringement, then it seems clear that there was no copyright violation, as it did not lessen the incentive to create.
Re: Re: Litmus test
The defect in your analysis here is that copyright is designed to encourage future creation as well as the work already created. If you create something, and then it’s infringed–well, sure, the creation would have happened anyway, with or without the later infringement. But the artist/writer/etc. might very well not keep on creating if the works keep getting infringed and eliminating the incentive.
Incentive to create
that’s what we get in this world where too many people consider copyright something that provides full and total ownership of a concept, rather than a limited monopoly solely for the incentive to create.
If I were the judge in copyright cases like this, I’d ask the prosecuting attorneys “What is the purpose of copyright?” If they said anything that couldn’t fit into the “incentive to create” category, I’d find a way to throw the case out. If they did, by some miracle, give the right answer, I’d follow it up with “And how does the defendant’s actions act as a disincentive to create?” If they couldn’t give a reasonable answer i.e. one that didn’t use some torturously complicated logic, I’d find a way to throw the case out.
(Yeah, yeah. I know. That’s why I’m not a judge. But it’s fun to imagine the looks on their faces.)
Lets take this to it's illogical conclusion
If it is copyright infringement to show the fashion that someone is wearing then we cannot show the clothes that anyone is wearing for fear of an inadvertent copyright infringement. No clothing should be allowed to be shown in any photograph because it violates the rights of the creators so everyone must now be either naked or wear DRM free clothing.
The purpose of clothes is to show them. People by them to be seen in them. This is entirely different from entertainment where the actual product is copied. This is the purest case of free advertising you’ll see.
Stupid arguments about who owes who more (France vs America) notwithstanding, I hope the case gets crushed. Target’s pirated clothing lines would go out of business. Wait, aren’t they a French company?
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The purpose of visual entertainment (e.g. movies) is also “to be seen”.
How so? The design is part of the actual product, which also includes the physical medium (finished garment), and the photograph creates a “copy” of the design part. With a movie, for example, the actual audio and visual information is only part of an actual product which also includes the physical medium (film, disc, etc.). Same difference.
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With a movie, for example, the actual audio and visual information is only part of an actual product which also includes the physical medium (film, disc, etc.).
You are overstating the importance of the physical medium in the case of movies.
Please see: The Internet, File Sharing Networks, Netflix, and YouTube.
I would say that the audio and visual IS the entire movie. Just that in some cases, it is transported on a physical disc with some packaging.
However, more on topic, I think John Yoyo has an extremely valid point about the stupidity of this case. Probably the most entertaining argument against it I have seen so far.
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No, in fact I didn’t say or mean to say that the physical medium was very important at all. The important part, copyright wise, is the intellectual part embodied by the final result.
And in fashion design the important part, copyright wise, is also the intellectual part which can be transported in a number ways, such as drawings on paper, in computer files, or in physical garments. Again, basically the same as with movies. If it is infringement to take videos of movies in movie shows then why shouldn’t it be infringement to take pictures of fashions in fashion shows?
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If it is infringement to take videos of movies in movie shows then why shouldn’t it be infringement to take pictures of fashions in fashion shows?
Probably because at an insanely huge percent of these shows, the whole idea is to invite people to take pictures of them.
Your idea of having an infringement law for that is probably one of the more stupid ideas I have heard today.
Please see the above commentors insanely simple solution.
If, for your specific show, you do not want people taking pictures, then simply do not allow cameras.
Making a law and calling that infringement would ruin the entire purpose of FAR more shows than the tiny select few who are that horribly anal and don’t want pictures taken.
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Well, in this case the companies didn’t have permission to publish copies of the photos to the internet, which they did anyway. Is it really sane to expect that because photos from some shows can be published on the net that they all should be so? I fail to see any sense behind that reasoning. Different shows have different rules.
There’s really no reason to start name-calling now. If you have a sensible argument then let’s hear it, but name-calling just isn’t very convincing.
Try reading the article. The issue isn’t that photos were taken but that they were then reproduced in unlicensed ways.
Are fashion designers some kind of subhumans who don’t deserve the same protections that movie-makers and others do?
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I called your idea stupid, not you. But if you so desperately want to be called stupid, ask me nicely and I might call you stupid instead of just the idea, even though I would have no basis to do so.
Different shows have different rules.
Well, you agree with the point I have been making, but then seem to think that it is somehow a counter argument. Just as I said, if they did not want pictures posted, do not allow cameras. The idea here is that it was not their pictures, so they do not possess the copyright. If they do not want pictures taken, do not allow cameras. Quite simple really. But they allowed people to bring in personal cameras, which they do not own. They do not own pictures other people take with their own cameras, so it is impossible for them to have been reproduced in an unwanted way.
Are fashion designers some kind of subhumans who don’t deserve the same protections that movie-makers and others do?
Are the photographers some kind of subhuman that you are just going to steal their pictures because it was of something that happened to have a fashion designer’s work in it?
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I never said that you called me stupid. If you can find where I did then please point it out. And no, I don’t desire to see you call anyone stupid, so put that strawman away.
No, I don’t.
You need to look up the term “derivative work” as it applies to copyright. Just because the photo graphic copies were made with the photographer’s own cameras does not give them copyright over the original work any more than ripping a copy of a movie gives one the copyright on the resulting file even if one uses one’s own computer to do so. It is a derivative work and the original copyright owners retain their rights. I honestly don’t know where you get the idea that copyrights don’t apply if the copies are made with one’s own equipment. Could you please point out the part of copyright law that says so?
Oh boy, so you’re one of those “infringement equals theft” type, eh? Sorry, but the Supreme Court of the U.S. has ruled otherwise and for now I’m considering them more authoritative than yourself on the matter. And the the photos “happened to have” the designers work in them because the photographers purposely put it there. It was no innocent mistake and as I said above, making a copy of a copyrighted work does not terminate the original copyright. You may believe otherwise but the law is not on your side.
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never said that you called me stupid. If you can find where I did then please point it out. And no, I don’t desire to see you call anyone stupid, so put that strawman away.
Okay then, Please point out where I was name-calling, from your previous post:
You Quoted Me: Your idea of having an infringement law for that is probably one of the more stupid ideas I have heard today. —
You said: There’s really no reason to start name-calling now. If you have a sensible argument then let’s hear it, but name-calling just isn’t very convincing.
I think you horribly mis-quoted there, or are entirely wrong, one or the other. Then you try to shrug it off when I point out I did not call anyone any names. The only thing remotely close to name calling in the statement that You quoted, was me calling your idea stupid. So I replied to that. I am sorry if I was replying to the wrong thing you were trying to point out, but if that was not it, then you really need to point out where I called anyone anything. Otherwise your entire statement about name-calling was 100% false. Nice try though.
My point has been rather simple. A law is not needed to enforce copyright on all of this, when most of the time, the law would go against the wishes of those it would affect. Then you agreed by saying different shows have different rules. That is exactly what I was saying. And most shows want pictures of their designs. They want the people to know it was their design, their idea, and what the people can look forward to purchasing from them.
Oh boy, so you’re one of those “infringement equals theft” type, eh?
You are very obviously new here. Please look up .. well, just about any of my posts here in the past regarding infringement vs theft. That is as far as I am going with that one lest you get any bright ideas to try to further drag us off topic.
Derivative work or not, there is no law for copyright of fashion designs (in the US) as it stands now. I think the idea of having a law for it would be stupid. So, the photos may be a derivative work, but they are of a non-copyrightable item, at least for now. I think it should stay that way. As has been demonstrated, copyrights would severely harm the industry.
I will answer your question a second time:
Are fashion designers some kind of subhumans who don’t deserve the same protections that movie-makers and others do?
Please provide proof that they deserve copyright. All evidence suggests it would do far more harm than good to the industry.
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Look right up above where you called my idea by the derogatory term of “stupid”. Try to deny it if you will, but it’s right up there for everyone to see. That’s one of the things I like about Techdirt: people can’t go back and change what they posted in an attempt to deny previous remarks. Once it’s there, it’s there. Their only option at that point is to try to redefine their words. Is that going to be your next attempt?
If you want to accuse me of misquoting you then please point out where I did so.
So are you trying to say that you can call things about a person (their ideas, looks, mannerisms, gender, ancestry, etc.) derisive names but that isn’t name calling? I don’t think most people would agree with you on that one.
Name calling is a method intended to provoke conclusions and actions about a matter apart from an impartial examination of the facts of the matter. When employed, name-calling is thus a substitute for rational, fact-based arguments against an idea or belief, based upon its own merits.
Talk about false statements, you seem to be on a roll.
Really? Let’s look back at what you really said. In response to the question of why shouldn’t it be infringement to take pictures of fashions in fashion shows you replied “because at an insanely huge percent of these shows, the whole idea is to invite people to take pictures of them”. Now obviously infringement doesn’t apply to situations where the copyright holder gives permission for the usage so we’re talking about those in which no such permission was given. Even if the majority have no restrictions in their licensing (and I don’t know if that’s true or not), some certainly do and I can see no legitimate reason to force the licensing rules of the majority on the minority as you suggested. Hence, the statement that “different shows have different rules” was my statement, not yours as anyone can look right up above and see.
So what are you trying to say, that you’re inconsistent and prone to flip-flopping?
“Steal their pictures” sure sounds like equating infringement to theft to me.
Copyright law basically applies to creative works in a fixed medium. If you want to claim that fashion designs are exempt then please point out that exemption in the law.
I simply asked the question. Why should I provide proof for something I never claimed? I’m actually opposed to copyright and think that questioning why some groups should enjoy it’s protection and others shouldn’t helps to point why it’s not a good idea to begin with. So if you want to try to justify treating fashion designers differently I’m going to question why that should be so and so far you haven’t been very convincing.
Public Versus Private showing
The Law.com article says the showing was not public. It indicated it was not a private viewing also. If you don’t have a public showing and allow someone with a occupation of photographer in with a camera, aren’t you sorta giving up the “copyright” aspect of the case?
“A French court sided with the designers (French design protectionism shows up again…), and now the case has moved to the US to see if the designers can collect. “
Maybe in France that flies, but here I believe it is called news and is actually reporting. So sorry Frenchmen, collect in Euros.
Very sad. The fact is the photographer retains copyright for his own pictures unless he releases it… what the subject of the photo is has nothing to do with it. If fashion designers do not want their clothing photographed… they should not show it in public. End of story.
French fashion
The US is one of the only countries in the world not to protect design in general, and fashion in particular. It’s left over from the time when the US as a developing country felt entitle to copy everything from everybody. The lack of protection may be good or it may be bad (if you can call Ralph Lauren, who basically copies designs from day camp, a designer, then it is definitely not a positive thing), but it should at least be known by readers of techdirt. As for the US in WWII, if you you have to rely on statements about ‘saving the French’ to make yourselves feel superior, we have all lost much more than we think. Have a little dignity.
Wow
Is that going to be your next attempt?
I even quoted myself as saying it there smart guy. And if stupid ranks up there in your book as derogatory, and warrants you to go off on a whole “name-calling” tangent, then I have no clue how you survive the internet or why you surf the internet at all.
So what are you trying to say, that you’re inconsistent and prone to flip-flopping?
You were not talking about creating a copy and giving it to the designer. You were talking about taking the copyright of the photo, and making the owner of the copyright the designer. Say the government takes the copyright of the movie The Watchmen and hands it to me. Do you think they commited copyright infringement, or do you think they stole it from the person who owned the copyright (which seems to be in question at the moment). You can copyright infringe a copyrighted work. However, arbitrarily giving somebody’s copyright to a different person, and saying it is no longer copyright … well, you have to explain to me how that is copyright infringement. So sorry, no flip-floppin either buddy.
Hence, the statement that “different shows have different rules” was my statement, not yours as anyone can look right up above and see.
Sure as hell was my point though. I am sorry you could not grasp it. I believe most readers would.
I was considering not replying at all, as all of the responses seem fairly obvious …
Re: Wow
There you go with more name calling. But wait, you don’t do that, do you? Yeah, right.
Let’s just say that I like to expose people such as yourself for what they are. It’s kind of satisfying.
Talk about going off on tangents.
You really should read the law on copyright someday. “Derivitive works” really is part of the law whether you want to acknowledge it or not.
Well, you just did both again. Flip-flopping and name calling. Just can’t help yourself, can you?
I don’t think most readers are psychic and able to read your mind to determine that you actually meant the opposite of what you wrote. I can’t, anyway. I tend to believe it’s just more flip flopping.
Maybe it’s time for a recap of some of the positions you’ve taken (changes with time due to flip flopping) and see how they add up:
1. I overstate the importance of the physical medium. (Actually, I stated that the intellectual part was the important part, not the medium, so how is that overstating it’s importance?).
2. That the licensing at “an insanely huge percent of these shows” (the majority?) should be forced on all shows.
3. Calling derogatory names isn’t name calling. (See http://en.wikipedia.org/wiki/Name_calling for example for a little more info)
4. It isn’t copyright infringement if one uses one’s own equipment to make copies of copyrighted works.
5. Copyright infringement is theft.
6. The photos just “happened to have” the designers intellectual content in them (as though it was only incidental or accidental).
7. “Derivative work or not”, as if the derivative work part of the law doesn’t matter or doesn’t exist.
8. Fashion designs are exempt from the law.
9. That I’ve been misquoting you (really? where?). Perhaps you think that I’ve misinterpreted you but that’s far different from misquoting.
I’ve asked you to point out the laws that support your legal positions but you have yet to do so. Instead you just spew out more personal insults. If that is the only way that you can reply then maybe it would be better if you didn’t reply at all. Debating people who just repeatedly spout off stuff that they can’t defend is a waste of time. I’m through wasting my time on you (for now).
So basically you twist my words, and then use the twisted words to support your point. Nicely done.
5. Copyright infringement is theft.
That alone shows your lack of understanding for the point I made. I even went into detail, which you quoted, and then drew the completely wrong conclusion from. I am sorry that I was not clear enough for you, but twisting my words does not make you look intelligent.
Call me a name caller all you want. You are stupid, you are stupid, and guess what, you are stupid. Hahahahaha. Sucker.
*gasp* I have offended Captain Know-It-All guy. Watch the flaming ensue for name calling. I will certainly see that as name calling. However, I do not see describing something, with an adjective, and which is opinion at that, as name calling. I would see calling you a prick as name calling, but I didn’t do that. I guess my generation is just a little different from yours. So I will agree to disagree over whether calling an idea stupid, is name calling. You quite obviously see it as name calling, and I do not.
I’ve asked you to point out the laws that support your legal positions but you have yet to do so.
More evidence you missed my point completely. I have a logical position. I am not trying to set legal precident. Which is why I think these laws, and your question, or suggestion, or whatever you want to call it, to expand them, is stupid (that is an opinion, and a descriptive adjective, which usually doesn’t constitiute a name, at least not for my entire generation, who are a little more thick skinned than you). Copyright laws should be a) rewritten, and b) drastically cut back. The internet has changed things. You, and all of the major content people, and those designers need to learn to deal with it.
Both sides of the coin
Perhaps it should be judged that if someone is wearing clothes, then taking a picture is only recording what is already displayed in the public domain and cannot be expected to hold any degree of privacy or control. It’s like asking people not to whistle a tune they have just heard… well maybe not, but it feels like it.
However, if photographers had to sign NDAs upon being invited to fashion shows, then that is a different story and it’s unstandable that the designers would be irked if their designs leaked ahead of retail launch! They have to protect fashion jobs just as much as the photographers have to run their own businesses.
Both sides of the coin
Well, you agree with the point I have been making, but then seem to think that it is somehow a counter argument. Just as I said, if they did not want pictures posted, do not allow cameras. The idea here is that it was not their pictures, so they do not possess the copyright. If they do not want pictures taken, do not allow cameras. Quite simple really. But they allowed people to bring in personal cameras, which they do not own. They do not own pictures other people take with their own cameras, so it is impossible for them to have been reproduced in an unwanted way. When I was a graduate jobseeker I had my picture taken alot of times by recruitment companies for no apparent reason!!