find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
Lorna Jane IP suit highlights IP pitfalls

Lorna Jane IP suit highlights IP pitfalls

Ken Philp

Recent controversy over the fashion label's unauthorised use of an Instagram image should serve as a warning to other businesses, writes Ken Philp.

While the internet is still, in some ways, 'a wild west' of unregulated use, people are becoming more aware of copyright infringements, especially the unauthorised commercial use of photos downloaded from social media sites.

The unauthorised use of images on social media sites is a growing industry within IP law.

The issue is in the news after 19-year-old Queenslander Lydia Jahnke, a keen customer of local activewear designer clothing label Lorna Jane, complained that Lorna Jane used a photo of her from her Instagram account and reproduced it on items of clothing.

Last year Miss Jahnke was photographed in a triumphant pose atop Queensland’s Mt Mee wearing a Lorna Jane top. The photo was uploaded to Instagram and reposted by Lorna Jane. But things turned sour after Miss Jahnke later saw her photo used on a range of shirts sold by Lorna Jane. She is now pursuing legal action.

Under the copyright law in Australia, copyright ownership of a photo rests with the person who took the photo, and a rights holder is entitled to seek damages or the profits that the other person gained from use of the image, which is normally a percentage of the royalties from sales of the item featuring the image.

But you’d have to show people bought the item because of the appeal of the photo. It’s not that easy.

Businesses using photos from the internet and especially from social media sites, need to be very aware of the legal risks in doing so.

There are strict limits on the use of copyrighted photos in Australia. While fair dealing exceptions to copyright infringement may apply, such as fair use for the purpose of review or criticism, parody or satire or fair use for the purpose of reporting the news, people seeking to use the fair dealing exceptions need to exercise caution, and the best course of action is always to obtain the permission of the copyright owner before using the photo.

I am not acting for either party in the Miss Jahnke and Lorna Jane matter, but the issue of copyright law has some light shining on it now and it's important to stress to any business looking for illustrations to promote its products to first seek to obtain written permission to use the illustrations from the owner of the illustration or subscribe to legal and reputable photo sharing library archives readily available on the internet.

Legally that’s the safest way to source images for business use. Never use a photo you found on a website or social media platform unless you have a formal agreement with the copyright rights holder. Even if you download the image from a website that advertises you can freely download and use the images, you might not be able to do so as the image may be on the site without the owner’s permission.

Some of the photo sharing library archive websites provide indemnities to consumers who purchase licences to use the images downloaded through their websites and these sites should be preferred over other 'free' sites.

Photos on Instagram also raise a question over traditional concepts of social media sharing. It is commonplace for images to be uploaded to Instagram in the knowledge others may repost the image to their own Instagram page, or even uploaded for that purpose.

On that basis you could argue a person uploading an image is giving a form of consent for the image to be shared, but that does not mean that consent extends to using the photo for commercial purposes, such as imprinting it on clothing.

Looking at the wider issue, Australia needs to establish an intellectual property/copyright court where rights holders can seek justice for copyright infringements without incurring significant fees. Given the rise of social media and the trend for reposting and sharing images, there’s a definite need for a fast and readily accessible court that specifically deals with intellectual property issues and allows fast and cost-efficient resolution for complainants.

Ken Philp is a director and intellectual property lawyer with Brisbane firm Bennett & Philp Lawyers.

Like this story? Subscribe to our free newsletter and receive Lawyers Weekly every day straight to your inbox!

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Lorna Jane IP suit highlights IP pitfalls
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Scales of Justice, ALA, right-to-die law
Oct 24 2017
‘Right-to-die’ laws would be a relief for terminally ill: ALA
The passage of an assisted dying bill through the lower house of Victorian Parliament has been haile...
Diversity
Oct 24 2017
Diversity top of agenda for future WA Law Society president
The advancement of diversity in the Western Australian legal profession will be one of the key items...
Jetski
Oct 23 2017
How to fail well
The legal profession is due for an attitude adjustment when it comes to perceived failures, accordin...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...