In case you forgot, Swedish fast fashion giant, Hennes & Mauritz AB (better known as H&M) has been facing a lawsuit from Los Angeles-based photographer, Estevan Oriol, over the use of a photograph on its apparel. Oriol filed a copyright suit against H&M this past summer alleging that H&M had misappropriated his 1995 photograph, “LA Fingers”. According to Oriol's complaint, which he filed in a Los Angeles federal court, the photo that H&M put on various articles of clothing was similar to his original image in six ways: "the selection of film, camera angle, lighting and background, as well as the placement and size of rings on the model’s hands." Oriol also manufactures his own line of clothing with the image on it.
There is a bit of procedural history thus far in this matter. Since the suit was filed, U.S. District Judge Manuel Real dismissed the Oriol's original complaint, but gave him the opportunity to refile, which Oriol did. Shortly thereafter, H&M filed a motion to dismiss the newly-filed complaint, asserting that the latest version was still "wholly inadequate."
Most recently, Judge Real ruled on the case, finding that Oriol hadn't identified any protectable, substantially similar elements between his iconic “LA Fingers” photograph and an image on a shirt sold by the Swedish clothing retailer. In his decision, Real stated: “As Oriol cannot articulate a single protectable element of 'LA Fingers' that is substantially similar to the H&M photograph, the photographs fail the extrinsic test of substantial similarity, and the H&M photograph is not infringing as a matter of law." As for the similarity in the the selection of film, camera angle, lighting and background, and the placement and size of rings on the model’s hands, Judge Real stated that “LA Fingers” is a coarsely grained photograph while the H&M photo is smoothly grained; the background in Oriol's photo is an out-of-focus young woman, whereas H&M's image lacks any background; there is a substantial difference as to which fingers wear rings in the images and the rings' placement on those fingers. Real further held that H&M's use of the image amounts to free speech and that the image depicts uncopyrightable “scenes a faire,” or generic elements.
This isn't the end of this case, however. According to Oriol's legal team, the photographer "intends on appealing. The fight will go on against those clothing manufacturers that continue to misappropriate protected artistic expression under the guise of ‘inspiration.’”
As for the nearly identical suit that Oriol filed against Los Angeles-retailer Brandy Melville, Oriol won that. The judge entered a default judgment was entered against Melville in January for failing to plead or otherwise defend the action, which sought up to $150,000 for Copyright Act violations.