Vogue Germany is going after fashion website, Fashion Copious, for posting images of its copyright-protected covers and editorials without the authorization to do so, according to our friends over at Racked. Fashion Copious's founder, John Haro recently shared a letter (see it below in its entirety) that he received from Vogue Germany's parent company, Condé Nast Germany, on the matter. In the letter, Dr. Stefan Freytag demands on behalf of Condé Nast that Haro "immediately and permanently cease and desist from distributing, copying and/or making available the photographs" from Vogue Germany. Haro and the handful of commenters on his site seem to agree that Haro is not really doing anything wrong, but is, instead, "promoting magazines, websites, models, agencies, etc." What Haro and his readers do not really address is the law and any exceptions that may exist to make Haro's posting of the images legal. So, here is a brief overview ...
Copyright law in the U.S. provides the authors and artists of original works with the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly subject to a time limit -- generally, life of the author plus 70 years. In the U.S., copyright protection is limited by a number of excpetions, one of which is the Fair Use doctrine. This affirmative defense, which a party may assert in court after being sued for copyright infringement (or trademark infringement), essentially gives parties a right to copy an author's work for the purpose of criticism, parody, or educational use (all of which are legal standards that must be established in court) without the author's permission.
While German copyright law differs from U.S. law, both countries are members of the Berne Convention, as well as the TRIPS Agreement, aligning them to some extent in terms of governing intellectual property laws. For instance, according to Article 9 Paragraph 2 of the Berne Convention and Article 13 of the TRIPS Agreement, the so-called "three step test" applies, granting limitations of copyright only when limitations "do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder."
Whether Fashion Copious would be able to meet this standard and thereby, be free to post Vogue's copyrighted material on its site is very much up for debate -- one that I will save for another day. (I will say that the fact that the Fashion Copious website is based largely on the unauthorized use of content that is subject to the copyrights of others likely does not bode well for the fashion site).
It is also worth mentioning is that when instances like this come about, one of the parties involved (aka the one served with the cease and desist letter) is often quick to claim Fair Use under U.S. law, a notoriously fact-specific inquiry that courts struggle with, making it difficult to predict in advance exactly how a court will rule. We can say with certainty that courts dealing with this issue consistently look to several factors, including: (1) The purpose/character of the use (What was the main purpose that motivated the artist to create and release the work? For instance, is it commercial or not?); (2) The nature of the work (Is it a fiction or non-fiction work? Is it published or unpublished? Etc.); (3) How much of the original work is embodied in the subsequent work; and (4) Market harm (How does the subsequent work affect the market for the original work?).
Given the fact that the Fair Use inquiry is a very fact specific and time-consuming one, I will spare you the details this time. However, if you are interested in learning a bit about the standard and how it is applied in the U.S., we took a look at Fair Use in the context of parodies not too long ago, as well as in response to one of Wil Fry's notoriously questionable designs, as well.
Dear Mr. Haro:
I represent Condé Nast Verlag GmbH, Karlstraße 23, 80333 Munich, Germany (“Condé Nast Germany”), the German subsidiary of Advance Publications, Inc.
– without the required authorization, thus infringing our client’s copyright – photos of a shoot which the model Anna Ewers very recently performed for the German edition of my client’s magazine VOGUE.
My client is the exclusive owner of all copyright and exploitation rights in this material that is for distribution in my client’s magazine VOGUE and on our client’s official website www.vogue.de only. Where my client sometimes authorizes the use of certain imagery for promotional and editorial use by other media, subject to certain conditions, my client has never authorized the use of the aforementioned imagery on your website.
As this is clearly not a case of user-generated content or the hosting of third-party content and therefore neither the DMCA safe harbors provisions nor any of their equivalents under European and applicable German law apply, it is merely for clarification that I stress that by receipt of this letter by you all necessary steps have been taken for immediate legal action in the German courts, should you not comply with the following.
Accordingly, I demand on behalf of Condé Nast Germany that you immediately and permanently cease and desist from distributing, copying and/or making available the photographs as set out above on your website www.fashioncopious.typepad.com and/or in any other media and respond to this letter immediately to confirm in writing that you will do so.
Should we discover continued evidence of unlawfully distributing, copying and/or making available the aforementioned photographs by you, we will take legal action as we deem appropriate in co-ordination with Condé Nast’s U.S. legal advisors.
This letter is not a complete statement of Condé Nast Germany’s rights in connection with this matter and nothing contained herein constitutes an express or implied waiver of any rights, remedies or defenses in connection with this matter, all of which are expressly reserved.
Very truly yours, Dr. Stefan Freytag Rechtsanwalt