Newcastle photographer sues Lowes for breach of copyright

In National Headlines, New South Wales

From the SMH/Newcastle Herald

YOU could call it the quintessential Newcastle summer snapshot: a lone surfer walking across the rocks near Merewether beach in search of a wave.

In fact, it was such a good shot that the photographer, Gateshead’s Naomi Frost, believes someone stole the image, printed it on thousands of T-shirts and sold them through menswear giant Lowes.

Ms Frost was surprised when a friend sent her a message late last year saying they had seen the T-shirt in a Lowes TV commercial.

The Lowes menswear chain's TV commercial featuring Paul Sironen with the disputed T-shirts.The Lowes menswear chain’s TV commercial featuring Paul Sironen with the disputed T-shirts.

She was staggered when she saw the T-shirt for herself at the chain’s Charlestown Square store.

The commercial for Lowes’ November sale showed rugby league great and ”Lowes’ legend” Paul Sironen displaying one of the T-shirts for $14.95.

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Naomi Frost's original photograph.Naomi Frost’s original photograph.

”It was just complete and utter disbelief that they would be so silly,” Ms Frost said.

”Everybody knows that you need permission – you can’t just take something off the internet and use it as your own.”

The photo, titled Vintage Surfer, was taken in 2008 and posted on photo storage and sharing website

The Lowes T-shirt featuring Naomi Frost's photograph.The Lowes T-shirt featuring Naomi Frost’s photograph. Photo: Dean Osland

It received dozens of compliments from Flickr users.

Four years later Ms Frost is suing Lowes in the Federal Court for breach of copyright.

Court documents filed by Wilde Legal on Ms Frost’s behalf state she is seeking a declaration that the copyright has been infringed plus damages.

The case has been listed in Sydney for next month.

”Photography is my job,” Ms Frost said.

”I make my living doing weddings and some portrait work and landscapes.

”I’ve had people pinch my stuff before and use it, and a couple of people who have tried selling my stuff without permission. But you can usually track them down and complain and they’ll take it down.”

Ms Frost said she was yet to see anyone wearing the T-shirt, but she believes they could still be for sale at various Lowes outlets.

A spokeswoman for Lowes said it was a private company and would not usually comment on such a case.

Instagram’s new policy

People who upload their photos to file-sharing websites retain copyright over the images but the terms and conditions on the websites can greatly affect their rights, Newcastle lawyer Melanie Wilde says.

Photo-sharing website Instagram caused outrage when it changed its terms and conditions to grant itself extensive rights to use uploaded photos without taking ownership of them.

That has now been changed to having ”non-exclusive, fully paid and royalty-free, worldwide, limited licence to use … publicly display, reproduce and translate” subscribers’ photos, the website states.

Put simply, the new terms and conditions, which take effect on Saturday, could grant Instagram a licence to do whatever it wanted with uploaded photos, Mrs Wilde said.

Facebook has similar conditions to Instagram while other websites such as Flickr state that copyright is protected.

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