TRIAL REPORT: Photographer Emma Delves-Broughton has won her case for copyright infringement against latex clothing label House of Harlot.
The professional fine art photographer, well known for her fetish imagery through her Goliath books Kinky Couture and Kinky Nature, brought the action after House of Harlot refused to compensate her for what she claimed was unauthorised and derogatory use of one of her images.
The photograph of model Amber Erlandsson wearing House of Harlot latex was taken in a forest near the photographer’s Bath home in 2005, as part of a private, non-commercial shoot financed by Delves-Broughton.
She supplied Amber with a disc of images from the shoot with a covering letter stipulating that the pictures were for the model’s personal use only, that any usage must include her photographer credit, and that she must be contacted if any use by another person was proposed.
But the Court heard that this stipulation was not adhered to, and in 2009 the image in question appeared for six months, in an altered form, in a large banner displayed throughout the House of Harlot website.
When Delves-Broughton discovered that her image was on the HOH site, she telephone Archer, telling him the use was unlicensed and asking for payment. He offered instead to take the image down from his site — which he did during the course of the telephone call — and to add the missing credit.
The photographer, however, wished to be paid, and after consulting National Union of Journalists guidelines, put in an initial request for £3,600 plus damages plus interest, based on eight uses of the image throughout the eight different sections of the HoH site.
Archer rejected this figure, but Delves-Broughton continued to press him to make an offer, subsequently reducing her claim to £2,000. Archer considered this still excessive, and during the year before the case came to court, he refused to make any offer of payment.
He told the judge, Mr Recorder Douglas Campbell, that he had believed Delves-Broughton understood that House of Harlot would expect to benefit from lending clothing for the shoot by making use of some of the images from it.
This kind of three-way collaboration between designers, models and photographers, was, he said, “industry standard” practice and was essential to his business.
However, he was unable to prove that in this case, a three-way agreement had ever existed. Archer, it appeared, had made his arrangement to obtain pictures with the model rather than with the photographer — who, as copyright owner, was the only one who could grant him a usage licence.
For her part, Erlandsson — appearing as a witness for House of Harlot — said that there had been a “discussion that led to an understanding” between her and Delves-Broughton about the need to include in the shoot some pictures that House of Harlot could use.
But the judge said he was not satisfied that such a discussion took place. And with no licensing agreement between the photographer and the clothing label offered in evidence, he preferred the evidence of Emma’s letter accompanying the images she had sent to the model.
He said, “It is clear from this letter that Mrs Delves-Broughton was not granting licence but was making restrictions on other usage.”
At the end of the two-hour hearing in the Patents Court of the English High Court of Justice, Mr Douglas Campbell concluded that no licence had existed for House of Harlot’s use of the image. In that matter he therefore found for Mrs Delves-Broughton.
He also ruled that the alterations to which the original image was subjected — cropping, removal of the background and omission of the photographer’s credit — amounted to derogatory treatment [as defined in UK copyright law].
He decided that there had been only one use of the image, rather than eight, and made an award for the infringement of copyright of £675, the NUJ’s full recommended rate for one use for the period in question. He made an additional award of £50 for the derogatory treatment.
The judge complemented Archer on the candour and honesty with which he had conducted himself in court.
But in deciding also to award the plaintiff’s full costs of £1,398 against House of Harlot, he said it was “a point against” Archer that when he had received the photographer’s original letter asking to be paid for the unlicensed use, he “could have made a counter-offer, but didn’t”.
The judge said this had “left Mrs Delves-Broughton with no choice but to bring the action”.
Robin Archer was ordered to pay the total of £2,123 plus interest in six monthly instalments. His request for leave to appeal was denied.
EDITORIAL COMMENT: This case does not change the legal landscape for the kind of creative collaborations that are bread and butter to the fetish fashion industry.
Rather, it’s a reminder that if you are a designer loaning clothes for a shoot, making a loan agreement with the model does not mean you have made an agreement with the photographer.
It is not wise to rely on a third party to secure your rights of usage with the copyright owner. You should always negotiate your licence directly with the photographer.
It is not true, as Robin Archer seemed to believe, that the simple act of loaning clothes for a shoot in itself gives you any claim on the pictures.
You may well feel you have a moral right to some pictures, but your legal right can only be established through a licence from the photographer, which for the avoidance of doubt should be in some written form.
Finally, if you do get into a dispute of this kind over copyright infringement, for God’s sake don’t let it get as far as a trial unless all other options have been totally exhausted.
Judges are known to take a dim view of people in civil disputes who have refused earlier opportunities to negotiate a settlement — as Robin Archer discovered to his cost on Friday.
Editor’s note: the Trial Report section of this article has been amended since first publication to include some additional information that may help with readers’ understanding of the case.