Published on October 15, 2018 by ottohopkinsfagan

Copyright law

“If you want to be original, be ready to be copied.”Coco Chanel. In this article, we discuss the law surrounding copyrighting and detail some interesting cases surrounding top, current celebrities.

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Social Media Influencers and the Law

The rise of social media has been instrumental in reshaping the rules of engagement between brands and consumers. It has become commonplace for brands to unveil new products using the popular platforms of Instagram (IG) and Twitter.

Celebrities in particular are capitalising on their social media popularity to promote their latest collection or collaboration project to their online followers. Recently, Los Angeles based jewellery designer, Tanaya Henry objected to the promotional photographs posted on Kim Kardashian West’s social media accounts for the launch of her new Classic Blossom Collection comprising of eye shadow, blushes, lip liners and lipsticks.

“It’s not about who does it first or last…it’s about who does it best”Tanaya Henry

The above quote is the caption of a post uploaded onto Tanaya Henry’s IG account which attracted 15, 853 likes from her 342,000 followers (at the time of writing). Tanaya Henry has accused Kim Kardashian West (“KKW”) and fashion photographer, Marcus Hyde of stealing the concept and designs of “Lip Lace”, which is a range of lip jewellery that was launched in February 2017 with a retail price of between $250 and $1,750.

In the promotional photographs uploaded onto KKW’s social media accounts for the KKW Beauty Pink Crème Lipstick Kit, Marcus Hyde has taken a close up of KKW’s face with her wearing one of the 6 shades in the lipstick kit, a lip ring as well as grillz designed by grillzmaker Dolly Cohen who like Marcus Hyde is tagged in the IG photographs. For those unfamiliar with the concept of grillz, the highest ranking definition on is “caps or fitting worn over one’s teeth, either on top, bottom, or both”.

Interested in social media and law? Then this post will be perfect for you! >>

What has Social Media Got to Do With Copyrighting?

Copyright is a property right that protects the expression of an idea rather than the idea or concept itself and affords the copyright owner with the right to carry out certain restricted acts such as copying and issuing copies to the public. There are reports that Tanaya Henry may seek recourse to the law by enforcing her rights for the designs and images that she asserts are protected by copyright on her business IG account: lacebytanya.  Typically, a copyright owner will instruct their solicitors to draft and deliver a cease and desist letter to the alleged infringer as a precursor to initiating legal proceedings.

The purpose of a cease and desist letter is to set out the complainant’s case and to request that an individual or organisation stop (cease) doing the act(s) complained of and refrain (desist) from carrying them out in the future. A cease and desist letter is underpinned by the threat of legal action for non-compliance as the complainant will reserve the right to bring a claim (England and Wales) or file a motion (USA) for copyright infringement.

In England and Wales, a cease and desist letter will take the form of a letter before action (“LBA”) in accordance with the Practice Direction on Pre-Action Conduct and Protocols in the Civil Procedure Rules, which provides the framework for the conduct and steps to be taken by the relevant parties prior to the commencement of legal proceedings. The LBA will identify the substantial part of the design protected by copyright as a work of artistic craftsmanship that is alleged to have been reproduced (copied) by the infringer.

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The distinctive nature of the copyrighted design will also be highlighted in the LBA. A comparison table of the copyrighted design and images of the infringing products are likely to be included in an annex to the LOA to illustrate the similarity of the designs. The annex or annexes to a LOA may also contain website screenshots of the infringing products being offered for sale, extracts from trade literature in which publicity was derived i.e. Elle, Harper Bazaar and the fashion bible, Vogue and/or photographs of infringing items obtained in a trap purchase.

Interested in Copyright and Intellectual Property Law? Then becoming a Media Lawyer may be the right specialism for you. >>

What Does This Mean for The Kim Kardashian Case?

It remains to be seen whether Tanaya Henry will file a motion of copyright infringement against KKW and possibly Dolly Cohen who was revealed as the supplier of the accessories worn by KKW in her promotional shoot. Whilst legal action may be looming on the horizon for the alleged breach of her rights under Title 17 of the United States Code governing copyright; Tanaya Henry could seek undertakings from Dolly Cohen to immediately cease and desist from manufacturing, offering for sale and selling the lip jewellery protected by copyright. The legal remedies available for copyright infringement on both sides of the Atlantic are the same: namely; (i) an injunction; (ii) delivery up or destruction of all infringing copies, (iii) damages or account of profits, (iv) legal costs and interest. Inevitably, creativity is a derivative process.

This echoes the sentiment that “everything has already been done before, every story told, every scene shot. It’s our job to do it better.”Stanley Kubrick

Author: Hilda-Georgina Kwafo-Akoto

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