Louis Vuitton Wins Lawsuit Supressing Artwork About LV-ish Bag -- Or Genocide, Maybe

from the sad dept

Three years ago, we wrote about artist Nadia Plesner, who was being sued by Louis Vuitton, because of some t-shirts she had made to raise money for the victims of genocide in Darfur. The idea was to create an image of a Darfur victim pimped out to look like Paris Hilton -- including carrying a Louis Vuitton-looking bag (though not an exact match). This is political speech, plain and simple. It's not a trademark violation in any sense of trademark law. Plesner didn't really fight the original lawsuit and lost, leading her to change the original drawing. So I was a bit confused over the past few days when I saw what appeared to be the same story popping up, involving the same artist, but it appears to just be the latest twist in the story. Plesner apparently created a painting that reused the same character:
So, Louis Vuitton freaked out again, and got an ex parte (basically only one side got to present their case) judgment against Plesner, with a penalty of 5,000 euros per day, and forbids her from showing the piece. I have an English translation of the ruling below, and it's really troubling. I recognize that Europe doesn't think as highly of free speech rights as we do in the US, but some of this stuff just makes absolutely no sense at all (Update: the section quote below is from LV's petition to the court, which is incorporated into the document, rather than from the court's statements itself, though the court seems to accept these claims as being valid):
In addition, Plesner relied on freedom of speech at the time. This defence also holds no water.

In general, intellectual property rights are regarded as justified restrictions of the freedom of speech within the meaning of Article 10 (2) of the ECHR: they are (i) prescribed by law, (ii) necessary in a democratic society, and (iii) intended for the protection of the reputation or rights of others. Only in exceptional cases, an intellectual property right (except from the restrictions already contained in the relevant IP laws) may be set aside on grounds of the freedom of speech. The strict requirements that apply as a condition for this have not been met in the present case, for a number of reasons.

First of all, there is no necessity to use the intellectual property rights of Louis Vuitton. Louis Vuitton has nothing to do with the genocide in Darfur, and therefore it is not necessary (and without reason) to associate Louis Vuitton with this genocide and to use its intellectual property rights for this purpose. Even as far as Plesner's message is that the public would only be interested in "showbiz elements" and not in the wrongs going on in the world (cf. paragraph 8 above), there is no necessity to use the intellectual property rights of Louis Vuitton. There are numerous other means to get this message across without using the intellectual property rights of Louis Vuitton; for example, if the choice would be made to maintain the picture of the African small child, the child could be depicted with a large diamond ring, or with a shiny car in the background, or slumping in front of a TV, etc. etc.).
It appears the court LV is saying one company's intellectual property rights is always going to be more important than someone's expressive rights. The fact that the court LV spends an entire paragraph effectively doing art criticism by saying she has other options for how she expresses herself is downright scary for anyone who actually believes in freedom of speech (Update: and it's equally troubling that the court accepts this reasoning). The concept of freedom of speech and expression is not about finding the least offensive way to say what you want to say, or kowtowing to some corporation that doesn't like what you have to say. You say what you say and you do it in the way that you feel best expresses your position.

The fact that the court effectively says it's okay to block expression so long as there's "any other way" to express yourself to make a similar point is horrifying. The court also assumes accepts that because she created another piece of artwork, the two are automatically functionally equivalent. It makes no effort to determine if the actual impact of the expression was equivalent. This is quite disturbing.

As for Louis Vuitton, the purpose of intellectual property law is being dragged through the mud here. It's not to stop an artist from doing something you don't like. It's not to stop anyone from doing something you just don't like in general. At most, it's to stop direct competition in the form of "unfair" copying or to prevent confusion in the marketplace. None of that applies here. The court makes the bizarre and totally unsubstantiated claim that "she caused great damage to Louis Vuitton." How? Honestly, how? Criticism of Louis Vuitton through parody should not be considered an IP violation. That basically rules out all parody. Is that what the court really wants to do?

Of course, once again, in filing this lawsuit and getting this judgment, Louis Vuitton has only served to do the exact opposite of what it had hoped to do. That is, it has called tremendous attention to Plesner and her artwork, and the statement she is making. You would think they would have understood that by now, but apparently not.

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  1. identicon
    David, 17 Mar 2011 @ 6:57am

    Tarnishment?

    Not a lawyer yet but...

    Mike, you said that this case has nothing whatsoever to do with "any sense of trademark law", but from the facts as you've given them there seems to be a pretty clear argument for tarnishment, associating Louis Vuitton's products with Darfur in people's minds. In the US, I'm pretty sure LV would be able to state a claim---defenses would still be an issue, but the claim itself would be fine. Of course, I don't know whether tarnishment is covered abroad, in trademark law generally or as a distinct form of liability...but I think the implication that this case is so obviously not part of trademark law that it deserves mockery is off-base considering domestic law would at the very least arguably include it.

    Separately, I'm sure there are arguments that tarnishment liability shouldn't be part of trademark, but that would be a critique on the general validity of tarnishment, a statement that trademark law as it exists should be rolled back. Not a statement that cases like this simply don't implicate trademark law at all, as it exists today.

    I'm also a bit surprised at the frustration over the court considering alternate possible expressions, since that doesn't sound new to me theoretically. For instance, the distinction in US copyright law between parody and satire---if someone's message or statement uses another party's work, but did not really critique that particular party/work, and therefore had no reason to use this particular work, the heightened protections of parody won't apply. Such a use would be satire, and likely subject to less protection than true parody. In other words, when we deal with parody in copyright, we care about whether the artist was parodying this plaintiff, or just parodying in general and infringing unnecessary people collaterally. (For reference, I do have concerns about what this distinction might chill, but it's my understanding of the US law for now.)

    From the write-up, I don't know the degree to which this artist had specific complaints or critiques about LV. If her message was about consumerism in general, or maybe about people like Paris Hilton who spend money on goods rather than humanitarian causes, rather than being about LV in particular, it seems like this is more analogous to satire than parody. If the message was specifically about LV, then I'd expect it to be more like parody and therefore get more protection in a US law setting.

    In other words, under certain facts this case seems to make a lot of sense, as an example of tarnishment to which fair use is a less powerful defense because it may not be specifically critiquing LV. The facts might be otherwise, but without knowing more, the frustration over it seems, I don't know, pre-mature? And from your reply above, it sounds like this is at least a borderline case, if the artist intended to broadly mock excessive lifestyle choices.

    The last thing I wanted to say on parody is that this isn't an example like the Chewy Vuitton case, where Louis Vuitton is being parodied with joke take-offs of its products. There, what was being produced was a direct parody of Louis Vuitton's stuff. But here, there's definitely no parody product; the bag depicted isn't changing a trademarked bag in order to mock or critique it. The critique comes from the inclusion of that similar-but-not-itself-mocking bag in the larger critique of consumerism. So even just as an initial instinct, while I'd agree that the larger piece qualifies as parody, I don't know that I see a true parody of LV or its products here.

    And yes, a lot of this is about US law, so doesn't apply where this case is being tried, etc. But I'm arguing how this would be handled domestically because a) we don't have the foreign law laid out, so I don't think the discussion is meant to be about the intricacies of European law, and b) I'm mostly responding to the implications that this claim is even theoretically indefensible, which I think is strange if the US law would allow it to go forward.

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