Can a Wedding Planner Use a Florist's Arrangement in Marketing Materials

Back Story:

My wife is a Wedding Floral Designer and recently provided floral arrangements for a wedding client. This morning my wife noticed that the wedding planner for this wedding decided to take one of the arrangements, adjust it slightly, and take a few photographs of the manipulated arrangement. The wedding planner then proceeded to list miscellaneous items (iphone cases, greeting cards, wall clocks, etc.) with the photograph(s) on them.

My wife chose the colors / color palette, flowers, and created arrangements that were purchased by a client that agreed to our terms. We believe that the wedding planner is infringing on my wife's intellectual property by slightly manipulating a few arrangements and then trying to sale merchandise that rely heavily on the photographic image that is printed on them.

Would we be in the right to send a Cease and Desist letter requesting the wedding planner to stop selling / offering the merchandise? Any help and thoughts would be greatly appreciated.

Thank you in advance.

You can send all the letters you want. She's free to ignore them and then what? You'd have to sue in court. Of course, to sue in federal court, you'd need to register the work first. Then you'd have to assert that there is some orginality in the work that was infringed by her photographing them.

You do not need to register a copyright to sue for infringement, but if you don't register your copyright you can only recover actual damages, not statutory damages.

Ideas cannot be copyrighted.

Thanks for the replies. We are not seeking and statutory damages; we basically just want her to stop using the photographs and claiming them as her own.

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Quoting designscr

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Thanks for the replies. We are not seeking and statutory damages; we basically just want her to stop using the photographs and claiming them as her own.

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This morning my wife noticed that the wedding planner for this wedding decided to take one of the arrangements, adjust it slightly, and take a few photographs of the manipulated arrangement. The wedding planner then proceeded to list miscellaneous items (iphone cases, greeting cards, wall clocks, etc.) with the photograph(s) on them.

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IF the wedding planner took the photos, then the photos belong to the wedding planner. That's the way that works. Those are the wedding planner's photos to use as the wedding planner wishes. :encouragement:

I guess the idea here is that the floral arrangement is a work of the visual arts, and thus that the photograph of the arrangement would be subject to the creator's copyright? The problem with that is that the arrangement in the photograph was "adjusted" and "manipulated" such that it was different from the one the florist created -- so even if I assume a significant creative element in the presentation of the original floral arrangement, sufficient to take it to the level of visual art, from what we've been told the photograph is of a different arrangement. The flowers may be the same, but the arrangement is different.

I'd like to add that the wedding planner sometimes recommends florists to the happy couple, if he/she is not taking care of that part of the planning, too. If so, OP and his wife might very well be shooting themselves in the foot as far as referrals/future work with this planner.

To further explain: I visit a famous site that has wonderful landscaping designed by famous gardener. I take photos of that landscape. Who owns the rights to that photo? :victorious:

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Quoting BooRennie

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I'd like to add that the wedding planner sometimes recommends florists to the happy couple, if he/she is not taking care of that part of the planning, too. If so, OP and his wife might very well be shooting themselves in the foot as far as referrals/future work with this planner.

To further explain: I visit a famous site that has wonderful landscaping designed by famous gardener. I take photos of that landscape. Who owns the rights to that photo? :victorious:

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While you would own any rights inherent in the photo itself, if the art you photographed is protectable under a copyright the original artist would still retain their rights to the image of their work. That is the real question here is twofold;

is the altered arrangement a drivative work where the original artist retains the copyright on at least part of the art.

But it before reaching that point, is the arrangement itself protectable by copyright.

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To make it simpler to understand;

if if I took a Mickey Mouse doll and changed the clothes and then took a picture of that, could I use my photo image in my advertisements without infringing on dinsney's rights?

in the case at hand the arrangement would be the original doll. The altered arrangement would be the doll with new clothes and the images used are the photos of the redressed doll

At least outside of Mickey's classic trade dress, which implicates another set of laws, it's not the clothes that make the mouse -- it's the face.

At a basic level, we can look at the elements that compose the original work and ask whether the use of the same or similar components is sufficient to make one a derivative work of another. The flags of Bulgaria, Italy and Madagascar are all comprised of blocks of white, green and red, but they're not the same flag. Two kids playing with the same set of lego blocks can make two very different creations, with no basis for a claim that one is derivative of the other, even though the blocks themselves are the same.

Also, while some wedding arrangements are particularly unique and original, others are not. The ones that are not are unlikely to have the sufficient creative element to be protected by copyright. But even for those that are, a third party's adjustments and manipulation may be enough to be transformative, as opposed to creating a derivative work -- or may make the arrangement an entirely new work that happens to use the same floral elements as the florist's bouquet, much as the two lego sculptures can be produced from the same set of bricks.

It's difficult to comment on the case without seeing the arrangement as designed by the florist, and as modified and photographed by the wedding planner. That is, beyond noting that the economics of the case make it unlikely that copyright litigation would be a cost-effective exercise.

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Quoting Mr. Knowitall

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At least outside of Mickey's classic trade dress, which implicates another set of laws, it's not the clothes that make the mouse -- it's the face.

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exactly my point. The underlying art is still there.

But apparently Disney believes it is more than just the face. They have filed an objection to Deadmau5's attempt to register his logo as a trademark


i have a question myself about this matter. In looking around I have seen where there appears to be a lack of consensus on whether a photograph of protected artwork is a derivative work. Any thoughts on the matter?