YSG Gets Million Refund Due to Photo Infringement
- Chaileedo Press
- Sep 15, 2022
- 2 min read
For providing photos that were not authorized by Emilia Clarke to YSG for use in product promotion, CLéMENT & CLéMENT was ordered to refund YSG 1,107,100 yuan ($158,800) and pay liquidated damages of 110,700 yuan ($15,900).
On September 13, China Judgment Online published the judgment of the second trial of the commission contract dispute between Guangzhou YSG and Shanghai CLéMENT & CLéMENT.
According to the verdict, YSG had signed an agreement with CLéMENT & CLéMENT in 2019, agreeing that CLéMENT & CLéMENT would provide YSG with authorized celebrity Emilia Clarke (actress of Daenerys Targaryen in American drama "Game of Thrones") to use pictures and videos of its Perfect Diary products, etc.
CLéMENT & CLéMENT made an offer to Emilia Clarke's team to collaborate with them, but Emilia Clarke declined. After that, CLéMENT & CLéMENT signed a cooperation agreement with Flaunt Magazine, which will adapt "advertorial images" to use Perfect Diary's products in Emilia Clarke's photo shoot, and Flaunt Magazine will provide Emilia Clarke's photos for the advertorial images to be used by YSG.
After the photos were delivered, YSG used the images on its Xiaohongshu and e-commerce platform, using text and image layout, and labeling the photos with "Emilia Clarke" and "FEAURED IN PERFECT DIARY ASSEEN IN FLAUNT" below.
On April 24, 2019, both YSG and CLéMENT & CLéMENT received a warning letter from Emilia Clarke, stating that the use of her name and portraits constituted illegal use and requesting that YSG immediately remove all images from its website and social channels. In fact, CLéMENT & CLéMENT only obtained authorization from Flaunt, not the star's authorization to use. YSG thought that it should refund the contract fees and pay liquidated damages at the same time.
In the first trial, the court ruled that CLéMENT & CLéMENT should return 1,878,500 yuan ($269,200) to YSG, and pay interest. The court of the second instance held that CLéMENT & CLéMENT had paid a total of $115,000 to Flaunt successively in order to obtain the above photos, so it should return a total of 1,107,100 yuan ($158,600).
In addition, for the breach of contract, the Court of Second Instance held that YSG's use of the pictures had exceeded the time agreed in the contract for use.
Moreover, after the celebrity team sent the letter, it did not take further measures. And the matter for which the celebrity team sent the letter of warning was not made public and did not cause a negative impact on YSG.
Furthermore, the contract in question was negotiated at a time when the U.S. drama "Game of Thrones" was on the air and Emilia Clarke as a popular star. The company wanted to achieve the purpose of publicity but did not sign an endorsement contract, and wanted to obtain a high income at a low cost, so it should have realized the risks involved.
Meanwhile, the company was at fault for putting the pictures into use without reviewing the authorization of the star's portrait rights.
In the end, the court of the second instance adjusted the standard of liquidated damages to 10% of the amount that CLéMENT & CLéMENT should return, which is 110,700 yuan ($15,900).
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