This article was written for and first featured in Fashion Capital.
When Nicola Kirkbride began a fashion blog as part of her degree she had no reason to think that the images posted on it would be used by the UK’s largest supermarket chain to sell clothing.
Miss Kirkbride, a 22 year old fashion student from Aberdeen, was understandably surprised when she learnt that a photograph of her face had been taken from her blog and was being used on a Tesco girl’s sweater. It was only when a Tesco worker tagged Miss Kirkbride in a tweet that she was made aware of her new found fame.
While flattered that her image was use on the front of a sweater, Miss Kirkbride was also angry that Tesco had not asked her permission to use the photograph.
There is a common fallacy that images which are freely accessible on the internet can also be used without the permission of the image owner. This is not the case. Since Miss Kirkbride took the photograph of herself using the self-timer function on her camera she owns copyright in the photograph. Anyone wishing to use the photograph would have had to have obtained Miss Kirkbride’s consent or a licence to avoid copyright infringement.
Tesco’s failure to obtain permission before copying the photograph means it is liable for copyright infringement. And because the copying amounts to a “primary” act of copyright infringement and is a “strict liability” offence, Tesco is automatically liable irrespective of whether it knew or intended to use a copyright protected photograph.
As the copyright owner, Miss Kirkbride is entitled to ask Tesco to withdraw the sweaters from stores and to ask for their destruction. In addition, she will be entitled to an injunction which has the effect of preventing further use of her image. She is also entitled to claim damages in respect of the sweaters sold calculated on the basis of a reasonable royalty.
Miss Kirkbride may also be entitled to additional damages because the copying was deliberate and because her website contains a copyright notice which expressly states that permission is required for anyone who would like to use the photographs.
Although Miss Kirkbride’s legal position is strong her commercial position is not. While Tesco is a large corporation and can afford an expensive legal action, Miss Kirkbride is a student with limited resources. This will stand against her in pursuing a favourable result through the courts.