House of Harlot, makers of latex dresses, rubber miniskirts, latex rubber catsuits, dominatrix costumes and much more, were caught with their bondage pants down when fetish, fashion and beauty photographer Emma Delves-Broughton from Bath discovered one of her photographs being used without permission on their website.
Delves-Broughton objected to the breach of her copyright but House of Harlot refused to stretch to an offer of payment. In May 2012 the photographer took the clothes design company to the Patents County Court in London and won.
Model Amber Erlandsson did not satisfy the Judge in the Patents County Court. Photo © Emma Delves-Broughton
“The image was one I shot in 2005,” Emma told EPUK. “The arrangement for the shoot was directly between the model, Amber Erlandsson, and myself and no one else.” The licence Emma granted Miss Erlandsson was only for the model’s own personal, promotional and portfolio use.
In 2009 Emma, whose work has been published in Maxim, Loaded and Marquis, and Marquis Style, discovered that House of Harlot Ltd had obtained her photograph from the model and had been running it throughout their web site for six months. House of Harlot never approached the photographer for permission to use the image, perhaps because a fee for the use based on suggested NUJ rates would have totaled £3600.
When Emma contacted House of Harlot they removed the image from their web site but refused to make an offer to pay for the image use.
Oral licence fails to satisfy court
“Miss Erlandsson was granted licence to make usage of the image for her portfolio,” claimed House of Harlot in a letter to the Patents Court. “And we were also granted licence verbally by dint of Miss Erlandsson’s licence.”
The Judge, Mr Recorder Douglas Campbell, did not agree. And when model Amber Erlandsson gave witness for the defence he just wouldn’t wear it.
Mr Recorder Campbell was not satisfied that the model had the right to give away the photographer’s image. He also accepted that Emma had no option left but to settle in the courts. The Judge did however take an elastic view of House of Harlot’s multipage use deciding that these should be seen as a single use even though the image appeared many times throughout their website.
The court awarded Emma Delves-Broughton a total of £2,123 plus interest, enough to clad a judge, jury and the ushers in the finest latex. In a further blow to House of Harlot leave to appeal was denied.
Removing picture is not compensation
“My reason for going to Court was simply that I believe in my rights as a photographer,” said Emma. “If someone wants to use a picture, they must ask the photographer directly.”
Emma adds that it’s no use taking an image down and expecting that to be enough compensation, after all it has already been used. “I maintained from the start that I wanted a payment for usage. At first I had not even put a price on it and was open to offers,” she said. In fact she would have been happy for House of Harlot to “Just make an offer.”
“We have no intention of making payment of £3,600 or greater, nor of making a smaller offer,” House of Harlot told Emma when first contacted about the copyright breach. Even Emma’s offer to settle at the lower price of £2,000 if paid within 28 days was ignored.
The photographer was left with two options. One was to let it go, and carry on letting people think it’s OK to use pictures without permission. The other was to take the matter further by going to Court.
Emma Delves-Broughton chose the latter and won. Had the House of Harlot stretched to an acceptable offer for the copyright infringement their day of shame in Court would never have happened.
• Emma Delves-Broughton, portraiture, fetish, & fashion photographer
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Thank you for writing up this report, but you miss several important facts. Delves-broughton claimed multiple usage of the image, which ramped the claim up to £3600. This is an unprededentedly high rate for an image on a website banner at low resolution. The second invoice was for £2000 for single usage, still much too high. We acknowledged a single use, which Recorder Campbell found to be true, reducing Delves-broughton’s claim to £675 for single use per annum. Substantially less than the £3600 claim. We refused to offer, which I now regret. I wish I had offered Delves-broughton £50.00. But I was so angry that we were being sued for using an image which we should have been entitled to use. Delves-broughton’s output is dependent on borrowed clothes and unpaid models. We have kindly lent clothing for several of her photoshoots over the past ten or more years, and I did not expect to be treated like this. The level of support for our position from many professional photographers reassures me that we were not in the wrong. Many have suggested that this kind of action brings photographers into disrepute , and that when you use a sledge-hammer to crack a nut, all you get is dust….
Comment 1: Robin Archer, 3 June 2012, 11:04 pm
Robin – you raise some interesting points but I don’t think they stand up to examination.
Delves-broughton claimed multiple usage of the image, which ramped the claim up to £3600. This is an unprededentedly high rate for an image on a website banner at low resolution.
The resolution is not relevant.
House of Harlots (HoH) clearly gets more value from multi page use than from a single use. It’s reasonable to reflect that in the licence charge. £3,600 is a high rate but you could have contacted the photographer and tried to negotiate a rate you were happy with. Or you could have sourced a different image. Instead you ran her image without telling her. It seems odd that if you really believed that you had the right to do that you didn’t contact her at all.
The second invoice was for £2000 for single usage, still much too high. We acknowledged a single use, which Recorder Campbell found to be true, reducing Delves-broughton’s claim to £675 for single use per annum. Substantially less than the £3600 claim. We refused to offer, which I now regret. I wish I had offered Delves-broughton £50.00.
Your acknowledgement came far too late.
It’s normal to start a claim at the high end. As the case develops it’s easy to lower the amount but if aggravating features later become apparent one cannot raise it. The problem that HoH had here was not that the initial claim was too high but that the company refused to negotiate or make any counter offer at all.
But I was so angry that we were being sued for using an image which we should have been entitled to use. Delves-broughton’s output is dependent on borrowed clothes and unpaid models.
You write “should have been entitled”. There’s no “should” about it. The image is someone else’s. End of story. That the model had borrowed clothes from HoH is neither here nor there. If HoH wanted rights in return for the loan then they should and could have said so and ensured that the model obtained those rights. That would have given Emma the opportunity to accept or to use different clothes or model.
The level of support for our position from many professional photographers reassures me that we were not in the wrong.
People who lose at court frequently feel that way but HoH lost so (by definition!) HoH WAS wrong. I’d suggest that they made two mistakes. HoH appropriated Emma’s IP recklessly, without considering the legal position. And HoH took an inflexible position when their unlawful publication came to light. A different choice for either of these would have avoided the problem coming to court.
Comment 2: David Hoffman, 5 June 2012, 08:01 pm
@david Hoffman. Thanks for your comments. HoH originally loaned the clothing to model Amber Erlandsson for the photoshoot in question, on the basis that HoH would enjoy mutually beneficial and reasonable use of images of our designs. Amber agreed this at the time of the shoot with EDB. The other model on the shoot on the day has subsequently also confirmed that this verbal agreement was made, though sadly we were unable to track her down before the court case. So we were wrong to not get written permission from the rights holder EDB, but most people have agreed that this was not the decent and honourable way to deal with the situation. If designers like us did not lend our clothing to photographers for free for the creation of their published work, then these images would not exist. We only expected to be able to use them on the same basis as the photographer and model, that was why we supplied the clothing in the first place. I have to say that ALL the other photographers, amateur and professional, with whom we work are more than happy to work with us on this basis, and have done for the past 20 years. In all that time this is the ONLY occasion that we have been treated like this.
You say that it is normal to start a claim at the high end. There is a huge difference between £3600 and the awarded £725. And a refusal to accept single usage.
Comment 3: Robin Archer, 16 June 2012, 12:11 pm
Robin – there’s not much in that post that holds water.
The court didn’t believe the model Amber’s claim that she had agreed free HoH use with Emma (the photographer) and found as fact that there was no such contract. The ‘unfindable’ witness makes the HoH claim still less credible.
You say “_If designers like us did not lend our clothing to photographers for free for the creation of their published work, then these images would not exist_” but in fact many shoots use products without the makers having any rights in the photos.
There is much in HoH’s behaviour throughout the dispute that undermines the claim that they held a genuine belief in an agreement to use the photographs.
You write “_There is a huge difference between £3600 and the awarded £725. And a refusal to accept single usage._” I was surprised at the decision of the court on this aspect. It is normal to charge more for multi page use than for a single use. I haven’t seen a full report of the case but suspect that had this part of Emma’s case been better presented a higher award may well have resulted.
In my opinion HoH have got off lightly.
Comment 4: David Hoffman, 17 June 2012, 01:38 pm
Dear David, I understand your perspective on this, and appreciate your comments and belief in the importance of IP and Copyright protection. I share those values. Over 20 years I have been lending my designs to photographers all over the world on a quid pro quo basis. In 20 years many highly esteemed photographers from all fields of the profession have been more than happy to work on this basis. They of course have copyright of the images featuring our clothes, and been paid for their use in publication and syndication. All we asked in return was to be able to use the images which feature our clothing designs. If they were not willing to do so, then there would be little point in allowing them to borrow our clothing. We were not selling prints of the images, but using the images to promote our designs. We are a very small company with a big profile. We cannot afford to spend thousands of pounds a year on photo shoots, but by collaborating with photographers we are able to have shared use of images. Everybody wins, and in 99% of cases are more than satisfied with the arrangement. EDB was not happy with this arrangement and reneged on a verbal agreement made in 2005. I don’t know what her standard day rate for a photoshoot is, but as it seems to usually be on an unpaid basis, (CD of images for modelling/use of clothing) I do not think we have got off lightly at all.
We have had our day in court, and lost on a technicality. We are not experts at going to court as this is the first time anybody has sued me. I thought foolishly that common sense and fair play would prevail, but I was wrong. Our evidence was flawed but our integrity was not. The code of the website showed categorically that there was a single use of the image, and the judge found that without having to resort to understanding the complexities of CSS and HTML.
In our little corner of the world, designers, models and photographers regularly collaborate for mutual benefit and have been doing so for decades. I plan on continuing to do so, on the basis that the people I work with are honourable and trustworthy, have integrity and a belief in mutual benefit. Sometimes, I might be proven wrong to do so, but I believe that our own integrity will not be damaged by this. Nor do I think we will be the real losers.
Comment 5: Robin Archer, 19 June 2012, 09:51 am
As you see Mr Archer remains in a state of complete denial reguarding this case. He seems intent on altering facts and coercing others to support his skewed veiwpoint.
He had no agreement with EDB nor did he work with, or collaborate in any way to produce the image, this was prooved beyond doubt in Court. He designed and his company manufactured the dress that was worn and it is a great dress. He may well have been decived by the model into thinking she had gained a verbal agreement but she had not, there wasn’t any evidence to suggest otherwise, she deviated from her witness statement to include it and the Judge found her to be “Not credable”. HoH’s own hire agreement that carries the joint copyright clause also asks for proof from the designer, stylist or manager of the shoot before the colthing is released, this wasn’t provided, they seem happy to enforce one clause but not another.
The lack of creditation may well have been a simple coding error but that error remained up until the case was heard and probably after. In fact you’ll only find a few credits anywhere on their site so not a lot of collaboration on their side for anybody.
Faced with the attitude above it’s no wonder EDB had to sue them.
Comment 6: Boris, 30 June 2012, 11:17 am
Boric, if you going to post at least use spell checker….
Comment 7: Robin Archer, 26 July 2012, 08:04 am
I don’t know what planet you live on Mr Archer, but suggesting that merely lending a photographer garments for a photo shoot should automatically entitle you to use the resulting photos for your promotional purposes without permission or payment is utterly absurd. If this was the case then no fashion designer on earth would ever employ a photographer to shoot their campaigns as they would simply re-use editorial images for their own advertising. If you open your eyes and look around you’ll notice that this doesn’t happen – because it’s illegal!
The reason that fashion designers lend their clothing to photographers is because there is a good chance that the images featuring those garments will appear in magazine editorials – which is free publicity for the designer’s business. This publicity is far more valuable for the designer than the photographer. Great editorial images encourage readers to purchase the featured items, whereas few if any readers will ever employ a fashion photographer during their lifetime.
You state that “We are a very small company with a big profile.” Well you can thank* the photographers who choose to use your clothing in editorial shoots for that big profile, because without their incredible generosity your business would probably have no profile at all!
*NB: The best way to thank photographers is to pay them when you use their images to promote your business.
Comment 8: Aaron, 28 July 2012, 03:47 am
The issue here is a very simple one. Copyright law was proven to have been flouted. Beyond ‘accidental’ flouting of copyright is what is called ‘flagrant’ copyright where an image is used expressly against the wishes of a photographer, without the proper permissions and knowing that it shouldn’t be used. Just because photographer’s do not persue every breach or that others may give you use or copyright doesn’t mean that the principle doesn’t hold. It does. It is the law and a very hard fought battle that was in 1988. If I had a holiday home and you paid me for staying there for a week would you assume that you had the right to come and go at other times? I doubt it. The point is the same.
Ex Director of AoP and Photographer’s Agent
Comment 9: Angela Woods, 28 January 2013, 06:08 pm
Robin, just because EDB used your clothes in her photos, it doesn’t mean you automatically have the right to use those photos without first asking her. Putting the boot on the other foot, would you find it acceptable for her to just walk into your shop and borrow clothes for a photo shoot without first asking you and then, when challenged by you, tell you a model who’d bought some of your clothes in the past said it’d be ok? Of course you wouldn’t.
Comment 10: Paul Manuell, 28 May 2013, 01:05 am