Sunday 29 April 2012

Vogue Spain’s uncredited use of Instagram photos

What a misappropriation looks like.
Many thanks to the Next Web for this comparison
Photographers may often feel like they are in a never ending battle against online appropriation of their images. It is recognised and even, perhaps, accepted that some uncredited use can happen in the social media world by inexperienced people keen to share images but failing to credit the origins of those images. However, photographers generally don’t expect one of the largest magazine publishers in the world to be taking their images, manipulating them and passing them off as their own. Yet, that is exactly what has recently been happening on Vogue Spain’s Instagram page. The misappropriation appears to have started with Sion Fullana’s work but when he raised awareness of the breach other examples came forward. Vogue has now apologised, via Instagram, and appears to be in negotiations with the relevant artists.
Part of Vogue's apology
(and the social media backlash)
In terms of the UK copyright position (which almost certainly doesn’t apply but let’s ignore the rules on jurisdiction for the purpose of this blog), Vogue Spain has clearly copied the whole/a substantial part of the works and communicated them to the public. Copyright infringement is pretty much a given. Somewhat ironically, the damage has really been more on Vogue Spain’s side thanks to a public backlash but that doesn’t prevent a cause of action from arising.

 The moral rights situation is (from a purely geeky perspective) far more interesting. In a couple of instances, Vogue applied a new filter to the appropriated images - is this change a derogatory treatment? Probably not, unless the artists can establish that their reputation was lowered in the mind of the public through these manipulations. Tidy v Trustees of the Natural History Museum (1995) 39 IPR 501* has taught us that this is a difficult test to meet – a reproduction in smaller dimensions was found to not be a derogatory treatment in the mind of the public (as opposed to the mind of the artist – who clearly wasn’t happy).

The failure to identify the relevant artist and arguably the false identification of the images as belonging to Vogue Spain, could constitute a breach of the paternity right and false attribution right respectively.  Judging by the various comments from the artists it is the false attribution which has, understandably, caused the greatest upset. This raises a further question, what is the use of ‘moral rights’ to the modern artist? The public pressure brought by blogs, tweets and posts on Vogue’s Instagram account achieved a more immediate response than any moral rights action could have achieved.

The fact that Vogue Spain allowed this to happen in the first place demonstrates a lack of understanding of (a) copyright & moral rights law and/or (b) social media. Even if an intern was responsible for these uploads, as some have speculated, the fact that such a junior (and clearly untrained) person was put into this position of power is mildly alarming and will hopefully cause Vogue to rethink its social media strategy.

 Read more on the Next Web here and here. Many thanks to Nancy Messieh for offering such an interesting and detailed insight into the story as it unfolded.

*sadly Tidy v Natural History Museum isn't on BAILII, if anyone has a copy or a link please share the knowledge using the comments feature below.

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