A poster by the Spanish Ministry of Equality to promote body diversity this summer has turned out to be very controversial, and not because of the message they intended to convey. Apparently, the illustrator hired by the government used Instagram photos of international body positivity influencers as a basis of her composition without permission. Additoinally, she did not have a license for the typeface used in the poster. This case has been particularly publicized in Spain and abroad, surely due to its subject matter and the parties involved, but it points to a very common problem in the world of design and advertising. From this we can extract some useful practical lessons:
1. Instagram photos have owners.
Photos found on the internet are, by default, owned by someone. First of all, the photographer usually retains copyright on them, so you will need to have their permission to use them. In addition, the people who appear in the photographs retain image rights, so their permission must also be obtained. It goes without saying that these "permissions" are usually accompanied by remuneration. Only the photographs that so specify will be free of rights.
2. Seven changes are not enough
There is a widespread myth in the world of design that in order to copy without infringing, one must make "seven changes". This was surely the perception of the illustrator given the nature of the treatment given to her inspiration material: Photoshop filters, changes in tattoos, bikinis, one limb, etc. Actually, the copyright infringement test is not so arithmetical or quantitative, but rather qualitative. If the illustrator has had access to the original work and the resulting new work is substantially similar, there will be an infringement.
3. Fonts are free... sometimes
It's common to find "free" fonts on the internet on sites like Dafont or Freefont. Unfortunately, if you read the fine print, you'll find that this free is often limited to personal use. Commercial use, like the one at hand, generally requires the acquisition of a license to use. The fact that this campaign has a "social" dimension does not exclude its commercial nature.
4. Contracts, contracts, contracts
The Ministry of Equality has already withdrawn the poster and declared that the illustrator is solving the problem. This shows that there was at least a contract with a warranty that the final product would be the work of the author or that she would have obtained the necessary licenses from third parties. This type of clause is very important for companies that hire creative work in order to be held harmless from liability in case of infringement.
5. Reputational damage knows no laws
Although the problem in this case has clearly been the illustrator's ignorance or negligence, it's the government who is receiving backlash and criticism in the media. That is why, regardless of whether they are protected by contract, companies and institutions must take special care with the works and designs that they put into circulation (and always check with an IP lawyer).
In conclusion, while the Internet and social media provide artists with infinite sources of inspiration, they also provide too many shortcuts. Now more than ever, intellectual property expertise is instrumental to avoid both legal and reputational problems.
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Victoria Sofía Martín Santos
Esquivel & Martin Santos