Hogg Busts Bubble: On Taking Pics in the Dressing Room

For many girls, shopping is a social activity, not a solitary one.  And if a girl finds a cute dress when her friends aren't around to form a collective opinion, she's likely to do the next best thing:  try it on, take a picture with her phone, and send it around for advice (or to Mom for credit card approval). 

Most retailers, with the exception of bridal boutiques, wouldn't forbid these impromptu photo shoots for fear of losing sales.  But what happens if a store objects?  And what if the individual in question isn't just a potential customer sending a photo to friends, but celebrated U.K. fashion blogger Susie Bubble posting the pics on her site?

Designer Pam Hogg's people registered just such an objection to Susie's photos of herself in a colorblocked catsuit, leaving the certifiably adorable blogger (yes, we've met) with the impression that only women of otherworldly stature and minimal mass are welcome to appear in Hogg's clothes.  Not exactly a PR coup.

Susie_Bubble_in Pam_Hogg.jpgThe note that caught Counterfeit Chic's eye, however, was Racked's report that Hogg's representatives "argue that Bubble violated intellectual property rights by posting a photo of an item she hadn't bought."  Now, that's an IP claim I haven't heard before.  And given that buying an item is not the same thing as buying IP rights in that item, such as the right to reproduce images of it, the argument seems more than a bit overreaching.  Does the company believe, for example, that Susie couldn't have taken a picture of an outfit in a shop window or photographed someone on the street wearing a Pam Hogg design?

As it turns out, Susie didn't mention IP rights directly -- though she did apologize for breaking the "rules of professionalism" by not asking permission to post.  Instead, she writes, "Their line is that Pam doesn't allow images of her catsuits represented in an uncontrolled environment unless you have bought one, were lent one or it was for a shoot."

Legally speaking, that's a different matter. 

While the catsuits are hanging in the Pam Hogg boutique, the company still owns them.  The shopping public is given a limited, revokable license to enter, view, and try on -- but Pam sets the rules about what can be done with her property and in her space.  One goal of this exercise in control may be to limit the dissemination of images of the goods.  This is achieved primarily by exercising ownership rights over the chattels themselves, not the IP rights in the designs.

But once those unauthorized mobile phone pics are taken, could a designer try to prevent their dissemination using IP law? 

It's doubtful -- and it's probably neither good business nor good public relations to try.  If the article of apparel in question has a surface design that is subject to copyright, the designer could attempt to claim copyright infringement under U.K. law, though there might be a defense of fair dealing. In Susie's case, posting the photos might easily constitute criticism, review, or news reporting.  (Same result under U.S. law, with a fair use defense.) 

With respect to the overall design of the item, either U.K. or E.U. design rights could apply -- but especially under U.K. law, it doesn't seem that merely photographing the item would infringe, unless the photo was taken for purposes of enabling an unauthorized party to make copies of the item.  And sending photos to friends from E.U. dressing rooms presumably qualifies as a private, noncommercial act -- and thus not an infringement.  (U.S. law almost certainly wouldn't protect the Pam Hogg catsuit at all -- and even assuming the Design Piracy Prohibition Act becomes law soon, there's an exception for things like photos.) 

So, Susie, please keep smiling and snapping photos -- with care and respect for the merchandise, of course. You may find yourself stuck outside the Hogg pen and similarly strict boutiques, but not on the wrong side of IP law. 

And as for the camera phone as magic mirror, isn't there an app that will make us look as good as Susie in that getup?