Introduction
This essay seeks to advise Zahra, an online commentator on art and culture, regarding potential copyright infringement issues arising from her recent activities across social media and other creative projects. Zahra has encountered legal threats from representatives of Geraint (a photographer), Afua (a designer), Sofia (an architect), and W (a musician) due to the unauthorised use or replication of their works in her content. Copyright law in the United Kingdom, primarily governed by the Copyright, Designs and Patents Act 1988 (CDPA), provides creators with exclusive rights over their original works, and infringement can lead to civil remedies or even criminal penalties in severe cases. This analysis will explore each situation in detail, examining whether Zahra’s actions constitute infringement under UK law, considering possible defences such as fair dealing, and offering practical advice on how she might mitigate risks. The essay is structured into sections addressing each specific issue, followed by a conclusion summarising key points and implications for Zahra’s future conduct.
Background Display of Geraint’s Photographic Print
In one of Zahra’s recent videos, filmed at the Pagan Gallery in East London, a large-scale photographic print titled *Bow Down* by Geraint was visible in the background during her five-minute piece to camera. Under the CDPA 1988, photographs are protected as artistic works, and the copyright owner—presumably Geraint—holds the right to control reproduction and communication of the work to the public (CDPA 1988, s.16). By filming the print and broadcasting it on social media to thousands of followers, Zahra may have infringed Geraint’s rights, particularly if the display constitutes a substantial reproduction of the work.
However, there are potential defences under UK law. Section 62 of the CDPA allows for the inclusion of artistic works in films or broadcasts if they are permanently situated in a public place or premises open to the public. If the Pagan Gallery qualifies as such, and the print is a permanent fixture, Zahra might argue that her filming falls within this exception. Nevertheless, galleries often have temporary exhibitions, and if Bow Down was not permanently displayed, this defence may not apply. Furthermore, even if the exception applies, the prominence of the work in her video—visible for five minutes—might be deemed more than incidental, potentially weakening her position (Hyde Park Residence Ltd v Yelland, 2001).
To mitigate risk, Zahra should seek permission from Geraint or the gallery for future use of such works in her content. Alternatively, she could edit the video to blur or exclude the print, though this may not address past infringement if legal action is already underway.
Wearing Afua’s Designer Jacket in the Video
In the same video, Zahra wore a designer jacket created by Afua as a one-off piece for a client, Belinda, who subsequently sold it to Zahra. Under UK copyright law, fashion designs may be protected as artistic works if they meet the originality threshold (CDPA 1988, s.1). However, the protection of fashion designs is complex, often overlapping with unregistered design rights under the CDPA (s.213), which last for up to 15 years from creation or 10 years from first marketing, whichever is shorter.
The key issue here is whether Zahra’s act of wearing the jacket in a publicly accessible video constitutes infringement. Generally, wearing a copyrighted or design-protected item does not in itself reproduce the work or communicate it in a way that violates the creator’s rights, as it is not a direct copying or distribution (Sawkins v Hyperion Records Ltd, 2005). Afua’s legal representatives may argue, however, that displaying the jacket in a widely viewed video amounts to an indirect exploitation of the design, especially if it could be seen as endorsing or promoting Zahra’s personal brand without Afua’s consent. This argument is tenuous under current law unless the video explicitly markets the jacket for sale or replicates its design for commercial purposes.
Zahra’s ownership of the jacket—purchased legitimately from Belinda—further weakens any claim, as UK law does not typically restrict the use of a lawfully acquired item in non-commercial contexts. Nevertheless, to avoid future disputes, Zahra should consider consulting Afua or seeking a written agreement regarding the use of such unique designs in her public content, particularly if they are prominently featured.
Use of Sofia’s Tarantula Tower in the Video Game Go East
Zahra has been involved in developing a video game, *Go East*, set in a virtual representation of London’s City and East End, including Tarantula Tower, a building designed by Sofia. Architectural works are protected under the CDPA 1988 as artistic works (s.4), and copyright subsists in the design drawings and the building itself as a three-dimensional representation of those drawings. Reproducing a building in a video game, especially a realistic depiction, could be seen as reproducing a substantial part of the copyrighted work without permission, thus infringing Sofia’s rights (s.17).
There is, however, an important exception under Section 62 of the CDPA, which permits the inclusion of buildings in films, photographs, or broadcasts without infringement, as buildings are typically situated in public places. The application of this exception to video games is less clear, as games are interactive and may not fall neatly into the categories of film or broadcast. Case law on this specific issue is limited, but some legal scholars suggest that the principle of incidental inclusion might extend to virtual representations if the building is not the primary focus of the work (Garnett et al., 2011). If Tarantula Tower is merely a backdrop in Go East and not a central feature exploited commercially, Zahra might argue that its inclusion is incidental.
Given the ambiguity, the safest course of action is for Zahra and the game developers to seek a licence from Sofia for the use of Tarantula Tower’s likeness in the game. Failing that, they could alter the building’s design in the virtual environment to avoid direct replication, though this may not fully eliminate legal risk if the altered design remains recognisably derivative.
Promotional Image Resembling W’s Album Cover
A black-and-white promotional image of Zahra, depicted crouching against the wall of the Truman Brewery building in Brick Lane, closely resembles a famous album cover of W, a well-known musician. Under UK law, album covers are protected as artistic works, and reproducing a substantial part of such a work—through imitation of composition, style, or specific visual elements—can constitute copyright infringement (CDPA 1988, s.16). If Zahra’s image replicates key distinctive features of W’s album cover, such as the pose, background, or overall aesthetic, this could be deemed a substantial reproduction, even if it is not an exact copy (Designer’s Guild Ltd v Russell Williams (Textiles) Ltd, 2001).
Zahra might consider invoking the fair dealing defence under Section 30 of the CDPA, particularly if her image can be classified as parody, pastiche, or caricature. However, this defence requires that the use be transformative and not merely imitative, and it must not unfairly prejudice the copyright owner’s commercial interests. Without knowing the specifics of W’s album cover or Zahra’s image, it is difficult to assess the strength of this defence, but courts often adopt a narrow interpretation of parody (Deckmyn v Vandersteen, 2014).
Given the potential for infringement, Zahra should consult legal counsel to review the images side by side. If there is a risk of litigation, she might consider withdrawing the promotional image or modifying it to reduce similarities. Seeking permission from W or their representatives for the use of a derivative image would also be a prudent step.
Conclusion
In summary, Zahra faces multiple potential copyright infringement issues across her video content, video game development, and promotional materials. The display of Geraint’s photographic print in her video may infringe unless it falls under the public place exception, while wearing Afua’s designer jacket appears less likely to constitute a violation given its personal use. The inclusion of Sofia’s Tarantula Tower in *Go East* presents a grey area under UK law, with risks depending on the extent of replication and commercial exploitation. Finally, the resemblance of Zahra’s promotional image to W’s album cover poses a significant risk of infringement unless a fair dealing defence applies. To mitigate these risks, Zahra should seek permissions or licences where possible, alter content to avoid direct reproduction, and consult legal professionals for tailored advice. These cases highlight the complexities of copyright law in the digital age, where content creators like Zahra must navigate a fine line between creative expression and legal compliance. Moving forward, adopting a proactive approach to rights clearance and content review will be essential for Zahra to protect her work and reputation.
References
- Designer’s Guild Ltd v Russell Williams (Textiles) Ltd [2001] 1 WLR 2416.
- Hyde Park Residence Ltd v Yelland [2001] Ch 143.
- Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565.
- Deckmyn v Vandersteen [2014] ECLI:EU:C:2014:2132.
- Garnett, K., Davies, G., and Harbottle, G. (2011) Copinger and Skone James on Copyright. 16th ed. Sweet & Maxwell.
- UK Government (1988) Copyright, Designs and Patents Act 1988. London: HMSO.
