Lorna Jane accused of copyright breach after using teen’s Instagram photo on T-shirts without permission

Activewear fashion label Lorna Jane is under fire for allegedly breaching copyright laws with an Instagram user in Brisbane claiming a photo of her was used on the brand’s T-shirt range without permission.

Nineteen-year-old Lydia Jahnke told the Courier-Mail she was a big fan of the activewear brand and had been posting photos of herself wearing Lorna Jane apparel on her personal Instagram account.

The photo in question depicts Jahnke on top of a mountain wearing a Lorna Jane shirt and was originally posted to her Instagram account.

Jahnke claims the same image later appeared on a range of Lorna Jane T-shirts, which retail for $59.99, with the words: “The woman on top of the mountain did not fall there”.

She told the Courier-Mail she is seeking compensation from Lorna Jane because the company did not ask for permission use the photo, which she owns the copyright for.

“I was pretty excited until it was brought to my attention that what they did wasn’t legal… they never asked for my permission to use the photo,” Jahnke said.

Jahnke said she emailed the company to ask for a free T-shirt, which the company provided, before contacting her lawyer.

Her lawyer, Ian McDonald of Simpsons Solicitors, claims Lorna Jane has breached the Copyright Act. He believes his client will be entitled to damages, including the normal licence fee and profits from sales.

Jahnke is also alleging Lorna Jane lied by saying that she knew about the image prior to production and says the shirt was on sale for months before she found out about it.

A spokesperson for Lorna Jane told the Courier-Mail the matter is “currently being resolved between the parties” and the company will not be commenting further.

John MacPhail, director at NDA Law, told SmartCompany this morning under normal circumstances, copyright in a photo usually belongs to the person who took the photo.

“Clearly Lydia did not take that photo… it had to have been an assignment to her for that to happen,” he says.

MacPhail says if Jahnke is the copyright owner, the terms and conditions of Instagram are “quite clear”.

“You can’t take it (the image) out of the Instagram universe unless you have specific authorisation,” he says.

MacPhail says if this is the case, it would be an infringement of copyright and Jahnke would be entitled to damages.

One argument for the defence, however, could be that she has now taken a free shirt and waived her rights in accepting it, MacPhail says.

MacPhail says if there is a clear case of infringement and the shirts are still being sold, a court can award additional damages.

“That is an interesting aspect, if really trying to mitigate risk you would pull the line while this is going ahead,” he says.

“But I can understand why it wouldn’t want to pull the lines off the shelf; fashion is a fast-moving market, in a year’s time, there won’t be much call for the shirts.”

MacPhail says the case highlights the importance of asking permission when it comes to content and that one of the biggest lessons is once lawyers get involved, the money tends to go up “quite a bit”.

“If you don’t (ask), and it comes down to it, you might be up for a lot of money,” he says.

“If it’d (Lorna Jane) just got consent in the first place, it would have avoided all legal issues and lawyer costs.

“For small business, that’s quite a lesson there.”

SmartCompany contacted Lorna Jane and Ian McDonald at Simpsons Solicitors but did not receive a response prior to publication.

SmartCompany was unable to contact Lydia Jahnke prior to publication.