

"As a royal photographer I do not take lightly when a third party infringes my copyright ... The amount of effort that goes into photographing The Duke and Duchess of Cambridge at various events is very costly and time consuming. I'm sure Collette Dinnigan would take offence if I was to walk into her boutique and take a dress without paying."In response, Ms Dinnigan claims that she had acted within the defence of fair dealing because she was reporting the news. Her legal advisors, Axis Legal, stated that:
Section 42 of the Australian Copyright Act 1968 contains a defence for fair dealing for reporting the news. However, the corresponding section under section 30 of the Copyright Designs and Patents Act 1988 in the UK expressly excludes photographs for the purposes of fair dealing under subsection (2). Accordingly, Ms Dinnigan would not have been able to raise the defence of fair dealing under this head had the alleged infringement occurred in the UK."The press release issued by Ms Dinnigan's company 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. This is appropriate use of the photo in question and Ikon was at all times acknowledged as the author of the photograph."
The IPKat suggests that Mr Tanna's choice of words is interesting, for in a literal sense he has in fact 'take[n] a dress without paying'. That is, he has captured and authorised the reproduction of a photograph which itself contains Ms Dinnigan's artistic work. The Kat feels that Ms Dinnigan may have not raised this argument in her defence owing to that favourite area of IP practitioners, the (dreaded) copyright/designs overlap. If Ms Dinnigan's dress was mass produced, then her protection would be under design rather than copyright law.
Merpel, a little fashionista herself, asks readers the question: even if section 30(2) did not apply to publications in the UK, are the fashion choices of the Duchess current newsworthy events or is this construing the concept too liberally?

If you interpret news reporting that widely Ikon can never get a fee for the photographs at all. This is exactly the type of case we should be dealing with swiftly in the new UK fast track wihout the huff and puff of exemplary damages but this seems to be in Australia.
ReplyDeleteGiven the current emphasis on how IP impacts economic growth - how has copyright helped or interfered here. My interpreation is that it has interfered with Collettes abiility to grow her business but her profit should be enough to pay a fee for the photograpn though £5k looks a bit steep for a second sale of the photograph but fair for the first where it had exclusivity amd immediacy
I suspect the public at large would consider Kate's fashion choices to be more interesting than a possible legal action. The IPKat is presumably relying on the newsworthiness of the latter to justify the IPKat's taking of both the photograph and the dress for this post! So I would infer that her clothes are indeed newsworthy.
ReplyDeleteFilemot...
ReplyDeleteIkon has issued proceedings in England.