In Fall 2019, Splash News launched a lawsuit against Cardi B, Moschino and its Creative Director Jeremy Scott for infringing U.S. federal copyright law. Splash claims that social media posts of the celebrity in the fashion brand’s iconic floral coat interfered with their photo-licensing business, as none of the parties obtained a license to use the photos. Splash News claims to have reached out to Moschino, making them aware of the photos and offering the brand “a license for internal or social media use”. Instead, Moschino allegedly copied the images from the Daily Mail, which was granted a license to publish the photos by Splash.
Section 107 of the Copyright Act provides that the fair use defence applies when copyright-protected works are used in criticism, comment, news reporting, teaching, scholarship, and research. In an era where brand marketing and advertising is pervasive on social media, it would be difficult for fashion brands to rely on a fair use defence since the posts often have a commercial purpose. In fact, many brands reported an increase in sales after they started using “shoppable” Instagram posts. Take the example of the copyright infringement lawsuit between Alexander Wang and photographer Robert Barbera. Alexander Wang reproduced one of the photographer’s photos on Instagram, adding shoppable links to each piece of the brand’s clothing, detailing the price and name of the item.
In addition to denying this copyright infringement, Moschino recently responded with a copyright lawsuit against Splash News. The floral Moschino jacket that Cardi B wore in the photo is a “visual material” called “When Spring is in Bloom”, which Moschino registered with the U.S. Copyright Office in 2018. This registration gives the fashion brand the exclusive right to reproduce, display, and create derivative works of the design. Moschino claims that the photos at issue are derivative works of their copyright-protected design and that Moschino nor Jeremy Scott authorized the use of their design to Splash News.
There are several factors courts will weigh to evaluate the applicability of a fair use defence. It seems unlikely that Moschino can argue that the copyright infringement by Splash News had a negative effect on their use of the design in the market. When images of celebrities in fashion garments are shared on social media, brands benefit from more users getting exposure to their work and potentially buying their designs. However, photographers do not enjoy the same benefit when their work is shared without respect for their licensing fees. If brands do not have to pay for the authorization to use these photos, they stand to gain all the benefit in a one-sided relationship.
As we await the court’s decision in this matter, it is evident that the changing nature of social media and how images are increasingly shared for commercial purposes will impact the types of lawsuits we see from the media and fashion industries and how the courts may view copyright protection and the fair use doctrine.
Written by Summer Lewis, a second year JD Candidate at Osgoode Hall Law School. Summer is also the Content Editor of the IPilogue.