Nicola Kirkbride, the fashion management student in the UK who found her face all over a yellow children's sweatshirt in the megaretailer Tesco, has gone from "flattered" to "shocked and angry."  The shirts have been pulled from the shelves pending an investiation (that means, Tesco is mitigating damages in case it loses a lawsuit) and Kirkbride is in discussions and has legal representation.

Another interesting detail is that Kirkbride, as someone trying to break into the fashion industry as a profession, has previously engaged in negotiations to license other images to other merchandisers.  It seems her initial thrill of being "in pictures" has given way to a more pragmatic attitude.  Stay tuned here for more updates. 

To contrast the story of the fashion student whose image was commandeered by Tesco in the UK, in the United States, a former employee is suing the producer of online game World of Warcraft for using her voice and original composition song without permission or royalty. 

Ms. Lewis was an employee at the time the work was created, whereas Ms. Kirkbride was a stranger to Tesco.  There is always an argument that work related to her job created by Ms. Lewis while she was a salaried employee could be assigned to the employer.  (This is why lawyers are helpful if you find yourself in a pickle like this, even for a consult.)

As far as the employer is concerned, Ms. Lewis created something for her job, and they own it.  This is called a "work made for hire," typically owned by the employer alone.  However, it is not always clear who the copyright holder is.  From Ms. Lewis' perspective, of course, she created something on her own time related to a part of the game that was not her professional purview.  She clearly thinks this is hers alone, and is demanding royalties.

Whether you are an employer or an employee, works made for hire are like quicksand.  In this age of immediate, widespread dissemination of content, you must protect yourself with empoyment or independent contractor agreements that spell out very clearly which creative works are owned by the creator and what are owned by the employer.  This can cut both ways, and is not just a problem for starving artists.  Engineers, computer programmers, singers, and even bookkeepers and consultants need to have clarity before taking on creative projects. 

Robust non-disclosure and non-compete agreements can protect both the employer and the employee.  It's also important to discuss who has the right to create derivative works based on the product of a particular project.  These boring, boilerplate details can become crucial when a product is successful, because they leave a lot of money on the table. 

Don't let this happen to you:  Nicola Kirkbride,  a fashion management student in the UK, blogged about an outfit she was wearing.  She set the timer on her own camera and snapped a picture of herself wearing a daisy-print blouse in her own backyard to use for the blog.  Somehow, a designer employed by Tesco, a FTSE-100 retailer and the 2nd-largest retailer on earth (behind Wal-Mart), found the etheral image and put it, unchanged, on a sweatshirt for kids. 

The article is here. 

It's important to appreciate that the UK has a very different court system than the US, designed to discourage lawsuits or even the "threat" of a lawsuit in demand letters, so it's not unusual that Ms. Kirkbride's first move was something other than suing the pants off of Tesco.  However, it's jarring to realize that her intended profession is "fashion management" and she doesn't appear to think that she's owed compensation for the use of her image.  Even if she's delighted to lend her image and chooses not to exercise her right to forbid Tesco from profiting off of derivative works based on her photo, she is still owed a reasonable royalty.

There are two lessons for us US-based artists and inventors here.  First, keep your eyes peeled.  Ms. Kirkbride was alerted by a fan that her image was on the shirt.  Remember that having a network of people who like and/or want something from you in the industry in which you work can be priceless.  Even your competitors can ultimately be allies, and it's always wise to resist burning bridges where possible.

Second, value yourself.  You are on this blog because you think your ideas are worth "something."  In the event that you are the unfortunate victim of copyright or trademark theft, you may be entitled to a "reasonable royalty," or actual damages.  Actual damages are hard to prove after the fact, but if you are proactive and take excellent records as soon as you are alerted to the infringement, you can increase the royalty owed to you.  For example, perhaps don't encourage your friends to purchase the infringing item because you think it's "cool." 

As HLR follows this case, we will keep you updated as far as we can just how much a stolen image is worth when it becomes wildly popular.  Tesco may end up selling hundreds of thousands of these shirts, not just because they are a global retailer, but now this story has made the shirt a hot commodity.  It may be pulled from the market -- buy now, then sell on eBay!  This snafu might create artificial demand.  And each one of those hundreds of thousands of shirts should generate a royalty for Ms. Kirkbride. 

Stay vigilant!  Running internet searches on your products is the first step in finding potential infringers, but it's also important to cultivate your professional network for intel.