Diesel and Terry Richardson are being sued for allegedly ripping off the work of a multi-media artist for an ad campaign that the fashion brand ran back in 2016. According to the copyright infringement complaint that she filed in a California federal court last week, Haleigh Nickerson claims that Diesel S.p.A., its American arm, and Richardson “misappropriat[ed] the most recognizable artistic elements of [her] Sista Soulja photograph and installation” and used them “as a commercial vehicle to promote their products.”
In the newly-filed suit, Nickerson asserts that in early 2016, she “began developing the concept for [her] Sista Soulja” photo, which she ultimately published on her publicly-accessible Instagram account and which was “subsequently featured in an art show in Los Angeles on August 12, 2016.” Thanks to her Instagram posts and the art show, “Diesel or Diesel-affiliated personnel [were able to] observe her work and possibly [take] photographs,” Nickerson claims, arguing that that is precisely what reps for the fashion brand did.
More than that, Nickerson – who says that she “creates her own fashion items, designs her own sets, [and] … designs her own backdrops, lighting, props, positioning of the models, camera angle, and timing” – alleges that Diesel was likely made aware of her work, as she “had constant interactions via Instagram with artists and creatives, some even in fashion, who were directly connected with Diesel personnel, [and] who worked on [Diesel’s allegedly infringing] 2016 ‘For Successful Living’ campaign.”
Fast forward a year and Nickerson says that she “discovered an image from Diesel that unequivocally copied the most recognizable elements of [her] Sista Soulja photograph without [her] knowledge or permission.” Specifically, she claims that as part of its 2016 “For Successful Living” campaign, which was photographed by Richardson, Diesel “reproduce[d] the Sista Soulja composition of a combination of protected features.”
These features include “a woman of color who is dressed in predominantly black, red and green clothing that is accented by gold and stars that feature a contrasting border … [and who] is standing in a power stance pose with legs spaced apart in front of a red background covered with white stars.”
Nickerson, who maintains a federal copyright registration for the photograph, claims that Diesel’s alleged reproduction of “these and other copyrightable elements and combinations thereof, establish[es] copyright infringement.” She further asserts that such “copying is so brazen that [Diesel] even copied the name of the work,” pointing to the “Sister siren” name that Diesel chose to use for the image in a corresponding Facebook video.
The allegedly infringing Diesel image, which Nickerson says is “blatantly a derivative image and reproduction of Plaintiff’s Sista Soulja photograph at issue,” has appeared on advertising billboards in Milan, London, and Tokyo, and “in dozens of e-publications and multiple videos that continue to be published on the Internet to this day, including on Diesel’s own website and on Diesel’s YouTube channel.”
Looking beyond her copyright infringement claim, Nickerson says that Diesel’s unauthorized use of elements in her original photo is problematic because the original “was created by a woman of color.” Such alleged infringement clashes with Diesel’s public-facing statements that it “wish[es] to uphold the rights of people of color,” per Nickerson, who points to a Diesel communication in which the brand asserts, “Diesel continually strives to highlight creative, unique, and diverse voices and perspectives in its marketing and expects its partners to do the same, including by acknowledging and properly crediting new and emerging artists that may have contributed to their work.”
Still yet, Nickerson says that she does not want to be affiliated with Terry Richardson, and has “suffer[ed] reputational harm” as a result of Diesel’s “unlawful use and unconsented association to Terry Richardson’s work.” Nickerson cites the array of “sexual assault and harassment allegations” that were lodged against Richardson in 2017, and the fact that “brands and magazines that had worked with Richardson in the past began distancing themselves from him, and said they would no longer employ him” as a result. She further states that “in January 2018, it was reported that Richardson is under investigation by the New York City Police Department’s Special Victims Squad in relation to multiple sexual assault allegations; this investigation is ongoing.”
With the foregoing in mind, Nickerson says that she has suffered “irreparable harm,” and claims that “if such use on the part of [Diesel and Richardson] continues, [she] will continue to suffer irreparable harm.” She sets out a single claim of copyright infringement, and is seeking monetary damages, as well as injunctive relief to bar the defendants from “offering, providing, advertising, printing, distributing, selling or in any way making available to the public any photograph created by [her] or any derivative work thereof,” and requiring the defendants “destroy any and all digital or computer images [they] have of [her] photograph in their possession, custody or control.”
A rep for Diesel’s parent company OTB was not immediately available for comment.
UPDATE (November 11, 2020): A rep for Diesel told TFL, “Diesel rejects the accusation of copyright infringement filed by Haleigh Nickerson in California. The brand has never hired or worked with Ms Nickerson in any shape or form. The campaign was shot and produced in April 2016 by an outside agency – many months before Ms. Nickerson’s images were published.” The rep further noted that “Diesel will respond to Ms. Nickerson’s complaint in due course,” and that the company “has always prided itself on decades of award winning and iconic advertising campaigns that defined the creative industry based on excellence and respect for intellectual property.”
*The case is Haleigh Nickerson v. Diesel USA, et al., 5:20-cv-07775 (N.D.Cal.).
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