Art Market

Photographer Sues Forever 21 and Urban Outfitters over Use of Tupac Image

Jessica Meiselman
Jun 5, 2017 8:05PM

One of the infringing T-Shirts. Courtesy of David Clinch’s representatives.

Forever 21 and Urban Outfitters are back in court over copyright infringement allegations. This time, the retailers are defending themselves against Danny Clinch, a music photographer whose work has been published in Rolling Stone, Vanity Fair, and the New York Times.

On Thursday, Clinch filed suit against Forever 21 and Urban Outfitters over unauthorized use of several of his photographs of Tupac Shakur on clothing sold by the retailers. In his complaint, which also names other companies involved in creating the clothing, Clinch asserts that Tupac’s estate passed along the images purporting to claim ownership, when in fact, he holds their copyright. Behind the photographer’s claim lies a convoluted web of licenses that exist at the intersection of merchandising and art.

The complaint alleges that Forever 21 and Urban Outfitters both sourced the infringing t-shirts from Bioworld, a design and sales company focused on merchandise featuring entertainment personalities and brands. Bioworld—also named as a defendant in the case—is alleged to have licensed certain materials owned by Tupac’s estate through a third party. That third party provided Bioworld with a catalogue that included the unauthorized photographs of Tupac and apparently implied permission to use the images.

Photographic works such as those by Clinch are widely protectable under copyright law. Further, Clinch obtained a copyright registration, thereby bolstering his claims for statutory remedies. His case is complicated, however, by the fact that his copyright is not the sole claim of ownership associated with the photograph. Tupac’s postmortem right of publicity also has a role in any commercial use of Tupac’s image.

A right of publicity, under California statute, protects a category of aspects of a person’s identity, including one’s “name, voice, signature, photograph, or likeness,” from unauthorized commercial use. In California, as one may protect against their name or likeness being used for a commercial purpose during their life, their estate is accorded the same rights after their death.

In addition to Tupac’s right of publicity, Amaru Entertainment, which was formed after Tupac’s death to manage his intellectual property, boasts a variety of Tupac-related trademarks and copyright for a number of albums that had been unreleased at the time of his unexpected death in 1996. Amaru licenses these basic materials to third parties like Bioworld, who then use them commercially through partnerships with retailers to maximize their reach and exposure.

With respect to Tupac’s right of publicity, the assets that the estate has the ability to unilaterally license are somewhat limited. His voice and image subsist in copyrightable works attributable to others—for example, in photographs taken by artists like Clinch who claim ownership over the images. Accordingly, any commercial exploitation of Tupac’s image would require permission from both Tupac (or now his estate) and the photographer. And, accordingly, since each party has a parallel right in this work, arguably neither party alone would have been able to license the image for its use on clothing, for example.

Clinch’s claim is stronger than other recent copyright infringement suits levied against Forever 21 and Urban Outfitters. The former has been sued several times for copying various designs from Puma, H&M, Anna Sui, and Diane Von Furstenberg. Urban Outfitters has been a target of criticism from many independent designers who have taken to social media to voice their concerns over knockoff accessories and designs. But because copyright accorded to clothing and other “functional” items is narrow, cases like these and others against fast fashion retailers have lead to lengthy disputes with varying degrees of success. Centering around a photograph, Clinch’s lawsuit is more promising than these prior disputes.

Bioworld has also run into legal trouble for licensing images of deceased artists in the past. In 2015, Bioworld was sued by another photographer, Dana Lixenberg, after they licensed several photos she had taken of Notorious B.I.G. and Tupac to the same retailers without her authorization.  The case was settled out of court last month, and it remains unclear how the unauthorized images made their way into Bioworld’s catalogue.

While Bioworld worked with the estates of the artists to secure permissions, these cases highlight how important it is not to ignore an artist’s interest in the commercial use of their work, particularly, like in this case, when their subject is deceased and additional works of its kind are finite (you can’t take new pictures of Tupac today). It also points to a potential integrity issue with respect to fast fashion: The low price tags, large reach, and unambiguous commercialism of the industry’s retailers raises the profile of the illicit use of artist’s work.

When reached for comment, a representative for Clinch specifically pointed to the nationwide sale of t-shirts with his unauthorized images and explained that “after many attempts to resolve this we could not come to an amicable resolution and needed to turn to the courts.” This case, among others, reflects the resounding challenges that have surfaced around fast fashion, in part due to the fact that legal standards have struggled to keep up with the rapid pace of the industry.

Jessica Meiselman