Allergan sued over images used in marketing materials

Allergan and its subsidiary SkinMedica have been sued for copyright infringement after allegedly using a photographer’s images without permission.

Sarah Baley filed the suit (pdf) at the US District Court for the Southern District of New York on Wednesday, October 4, complaining that marketing materials used by the companies featured her images despite a licensing agreement on their use having expired.

Baley is a professional photographer who specialises in portraits and fine art, and according to her complaint, her photos are collected by many art collectors including celebrities.

In 2004 Baley photographed three female models for an advertising agency, and several of the works are registered with the US Copyright Office.

SkinMedica, which develops and sells skincare products, agreed a two-year licence with Baley to use the copyrighted works in its marketing materials.

The licence was extended several times before expiring in 2010.

However, Baley claimed that after the licence had ended, SkinMedica was still using the images. She requested payment and offered an extension to the licence, but the company allegedly refused and only paid for using the images for a one-month period in 2010.

SkinMedica later agreed to pay for use over six months, but pressured Baley to accept a “significantly reduced payment” for the unauthorised  use, the claim added.

Baley accepted this offer, but in 2015 and 2016, she allegedly discovered a print brochure containing the marketing materials in a dermatologist’s office in New York. She later found websites belonging to SkinMedica resellers showing the materials.

According to the complaint, Baley believes there are numerous infringers and has sent cease and desist letters to several of them.

She said that “each of the individual infringers’ infringing acts has been encouraged and made possible by defendants, whose objective is to increase sales of the SkinMedica products”.

In the complaint, Baley cited direct, induced, contributory and vicarious copyright infringement; she has claimed that it was wilful, and is seeking relief including damages and a permanent injunction.

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