Facebook Folly: Seafolly v Leah Madden


Have you ever tweeted, commented or blogged on social media sites like Facebook, Instagram, YouTube, or <youthoughtwewouldntnotice.com> about a rip-off?

Use social media with care.

The Federal Court of Australia has recently found that public statements made by swimwear designer, Ms Leah Madden, on her personal Facebook page and in emails sent to media outlets suggesting that Seafolly had copied 8 of White Sands’ swimwear designs were false, misleading and deceptive.

“The most sincere form of flattery?” Ms Madden wrote in her e-mail, followed by “Is it just us, or has Seafolly taken a little to (sic) much ‘inspiration’ from White Sands?” with side by side photos comparing “White Sands” garments alongside “Seafolly” garments.

And so began the battle of the bikinis.

Upon receiving a copyright complaint notification by Seafolly in relation to the unauthorized reproduction and publication of photographs from Seafolly’s catalogue, Facebook promptly took steps to remove them.

In Australia, companies with ten or more employees are unable to take proceedings for defamation so Seafolly sued Ms Madden under Australia’s consumer protection laws. The Court granted injunctions and made declarations that Ms Madden had engaged in misleading and deceptive conduct by wrongfully asserting that the Seafolly garments were copies of White Sands’ styles. The Court awarded limited damages in the amount of $25,000.

Seafolly also sued Ms Madden for copyright infringement.  However, the copyright claim could not be maintained as there was no evidence that the photographer engaged by Seafolly (who assigned his copyright in the photographs of the Seafolly garments and the right to sue for past infringement to Seafolly after the offending Facebook postings and email) had himself suffered any actual damage as a result of the publication of the photographs on the Facebook pages for a short period at the relevant times.

Watermark can help your business prepare a social media policy, advise you on your IP rights and strategies for shutting down offending material published online.

Watermark can also assist in preparing agreements to assign or license copyright from outsourced photographers, web designers, copywriters and other contractors engaged by your business. 

by Joy Atacador