Australian fashion designer Collette Dinnigan has landed in the middle of a copyright dispute concerning the use, without permission, of photos of Kate Middleton wearing a Collette Dinnigan design. The dispute raises interesting issues about the rights of fashion designers in their creations, the rights of media photographers in their photos, and the scope of the Australian fair dealing exceptions – in particular fair dealing for the purposes of reporting the news. According to a recent article published in the Sydney Morning Herald, the photos of Middleton, which were taken by photographers belonging to London-based agency Ikon Pictures, were reproduced by Dinnigan’s press agency in a media release as well as on her Facebook page. Dinnigan’s company has reportedly received several letters requesting payment for use of the photos but it appears the company will seek to rely on the fair dealing defence for reporting the news. What is interesting is that Dinnigan owns the dress design and copyright protects unique fashion designs. In theory, a photographer would need to seek permission from a designer to take a photo of a unique fashion garment. However, the designer will usually lose copyright protection once the fashion item is commercially applied. At this point, a photographer would be free to photograph it without infringing any copyright. Copyright also protects original photographs and the value for the photographers in this case lies in the fact that a celebrity has been captured. These kinds of photos can be licensed for many thousands of dollars and safeguarding the rights is imperative for a photography business. Australia has a number of fair dealing exceptions, including for the purposes of reporting news. Arguably, the fact that a high profile individual, like the Duchess of Cambridge, is wearing a particular design is a newsworthy event for a fashion designer. But to rely on fair dealing, you also need to be able to establish that the use is fair in all the circumstances. In one sense it might be argued that the particular use was fair, given that it is the designer’s own work that is featured in the photo. But in another sense, it may not be fair where the use has jeopardised a photographer’s chances of further licensing deals. Also, the availability of other options for reporting news such as linking back to the original photos on the internet or purchasing the rights to use the photos, rather than reproducing them without permission, may be relevant in this case. Read the full article here

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