Lady in Blue: an unlikely sidekick for IP protection

The State Hermitage Museum initiated a case against a Russian fashion designer alleging that the designer had used the painting Lady in Blue, by English painter Thomas Gainsborough, for commercial purposes.

During the case it transpired that the designer had ordered a picture based on Lady in Blue to place in her shop in order to create an appealing ambience for customers, as well as showing it on her shop’s website. The name of the designer was listed under the picture. It was clear that the modified picture bore resemblance to the original painting, even though some of the details were blurred.

The plaintiff based its claims on the Law on Museum Funds, which regulates matters connected to the commercial use of works of art owned by museums. However, the respondent argued that she had not used the modified picture for commercial purposes. It was intended to create an appealing ambience for customers. She also argued that the plaintiff did not indicate which of its rights would be restored by upholding its claims.

The case progressed through a number of court instances, all of which upheld the plaintiff’s claims. The case was then submitted to the Court of IP Rights, which did not consider the case on the merits, cancelling the lower court judgments and returning the case for reconsideration.

The case was reconsidered by the first-instance court, which confirmed the original judgment. The controversial picture was removed from the shop and the website. However, doubts remain over the outcome of the court procedure, which lasted for several years. Thus, the final judgment cannot be considered conclusive.