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In 1962 by Andy Warhol painted thirty-two 20” x 16” canvases depicting each one of the Campbell’s Soup company’s types of soup. Campbell’s Soup did not sue him. And Campbell’s, btw, has not sued any of the hundreds of Pop and street artists who have subsequently referenced Warhol’s soup cans with exact trademark replicas.
In 1986, when William Kennedy’s novel Ironweed was filmed, and the historic Street Car Diner in Albany was restored as a set and given the name “Miss Albany Diner,” it inspired a product placement bidding war between Pepsi-Cola and Coca-Cola over which logo would adorn the top of the diner. Pepsi won. So when Ralph Goings painted the Miss Albany Diner’s interior, in 1993, he included the Pepsi logo over the counter — a clear and perfect copy. But Pepsi was of no mind to sue. Neither was Heinz, nor Domino, or any of the other corporations whose logos figure prominently in many of Ralph Goings’s photo-real diner paintings.
Why didn’t Campbell’s sue Warhol? And why was Goings allowed to make free with America’s dearest sugary foodstuffs?
Common wisdom tells us that corporations tend not to file intellectual property suits against artists who use their trademarked, copyrighted or other protected materials because their products are not competitive with each other. When one market does not impinge upon another and there is no chance of confusion between the original and the derivative product, there is usually no cause to sue for intellectual property infringement. But we are beginning to see that there can be more to it than that.
Take, for instance, Louis Vuitton’s recent legal action against 29-year-old Dutch artist Nadia Plesner, who copied one of the luxury brand’s best-selling Audra bags into a painting?
The story is a curious one. Not only because Plesner had already been sued by Louis Vuitton in 2008 or that it was over her use of the same design, and it involved the same bit of imagery, a starved and platter-eyed young African boy, holding a chihuahua and the Audra bag, à la Paris Hilton, but because Plesner is using the same defense that failed her in 2008 and Louis Vuitton took the same action against her that it did three years ago: an ex parte court ruling against her.
Plesner’s Simple Living boy image is in frightfully bad taste, which is the power of it: one cringes, actually … as one ought. But it must be pointed out that in 2008 when Plesner first came up with the “Simple Living” boy, it’s first vehicle was a t-shirt.
The t-shirts were intended to call attention to the horrific situation in Darfur by contrasting the small silent boy and his obvious need for our attention, to the media’s obsession with fashion and celebrity. Plesner has taken on the cause of Darfur with a great deal of dedication, starting her own Nadia Plesner Foundation in June 2008. All of her profits from the Simple LIving t-shirt sales going to “containers and shipment of medical supplies to Darfur.”
But many good causes lose sight of good taste, so Plesner’s tin-eared approach to charity, hawking t-shirts for the privileged self-righteous to wear as a token of their philanthropy, was never reviled for its own ironically crass approach to marketing.
What was reviled, by Louis Vuitton’s legal team, was the artist’s use of their signature design as the key eye-catching element in her image.
They sued Plesner, for her use of the LV multi-colored repeat, created especially for them by the artist Takashi Murakami. Such trademark patterns, just as certain styles and imprints on hardware and leather, are aggressively protected by most fashion companies, some of which specifically hire interns to ferret out and warn all possible infringers. A failure to maintain a brand’s intellectual property rights can result in a loss of those rights when a case does come to court and it is shown that similar infringements were not answered in kind.
The UDUAK law firm, which represents the fashion industry states as much on their website, explaining that, “for fashion clients, the most important company asset is their trademark/brand. As a result, most fashion lawyers will tell you the bulk of their work involves intellectual property, copyright and trademarks.”
Plesner, they claimed at the time, was using Luis Vuitton’s intellectual property for her own merchandising purposes. Graciously acknowledging that her cause was “praiseworthy in itself,” Louis Vuitton nonetheless, opted out of inclusion in her campaign for pretty obvious reasons: there was no good reason to associate Luis Vuitton with the goings on in Darfur, and Plesner could accomplish the same message without the Audra bag, and without the ongoing damage to Luis Vuitton’s reputation by associating them with a genocide their company had nothing to do with.
It’s a fair point of view. Especially as regards the merchandising of t-shirts where Louis Vuitton’s intellectual property was being used to make money for Plesner. It is important to note that when Plesner agreed to stop selling the tees, Luis Vuitton summarily withdrew claims for damages.
That Was Then, This is Now
It’s 2011, and now Nadia Plesner has resurrected the Living Simple boy for her painting, Dafurnica. Based on Picasso’s Guernica, and in the same dramatic proportions, Plesner created the work for her first solo exhibition, Intervention, held in Copenhagen at Odd fellow Palace from early January to early February.
On her site she explains:
My latest work, “Darfurnica,” is a modern version of Picasso’s “Guernica.” In our time, the boundaries between the editorial and advertising departments in the media are disappearing and entertainment stories about the lives of Hollywood celebrities have become breaking news. Apparently a genocide in Darfur can be happening RIGHT NOW without being important enough to make headlines. This is unacceptable and I refuse to turn the blind eye to what is happening.
In “Darfurnica” I have mixed some of the horrible stories I have learned about Darfur over the past years with some of the Hollywood gossip stories which made headlines during the same time period.”
When Plesner returned to Holland after the show, she found she was bring sued again by Louis Vuitton. So she resurrected her old defense: though it failed her when she was marketing t-shirts with the Audra bag on them, Plesner declared that Louis Vuitton is attempting to limit her freedom of speech by enforcing their intellectual property rights.
Were it not for the former charges, and the fact that she gave in to them, her current claim would have been quite defensible. When it comes to fine art, there is a strong tendency for the courts to support a freedom of speech exception to copyright ownership, especially in countries which acknowledge European Convention on Human Rights, wherein provision article 10 guarantees freedom of expression.
But given the repetition of infringements and Plesner’s own back peddling in 2008, her case is weakened. It is damaged yet further by Louis Vuitton’s argument that when Plesner was forced to give up the Simple Living boy’s Audra purse, the artist made her point, and her charitable dollars, just as effectively with a new image, Miss Size Zero, depicting a starving girl wearing a beauty queen’s sash.
According to Louis Vuitton, as stated in their request for relief to The Hague, “The strict requirements that apply as a condition for [free speech] have not been met” because “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.”
The Louis Vuitton statement goes on to state that, “Plesner herself proves with the picture of ‘Miss Size Zero,’ which she has been using from 2008 … that this message may also be communicated without using the intellectual property rights of Louis Vuitton.”
Plesner and her attournies at the law firm of Kennedy Van der Laan of Amsterdam beg to differ. They have filed their own lawsuit claiming that The Hague “court order is a gross violation of her right to free speech and artistic freedom under Section 10 of the European Convention on Human Rights.” The first court hearing will take place on March 30, 2011. You can read the lawsuit in Dutch and the English translation on her site.
Further complicating the case is the fact that Louis Vuitton took their plea to court demanding an ex parte decision. Plesner is claiming that they denied her right to defense in so doing since she was not present to speak for herself, and that the court’s order is not in keeping with the intention of the law. According to her attorneys’ statement:
Ex parte proceedings are meant for evident violations of intellectual property rights, for example to stop a shipment of counterfeit shoes from China. It is not meant to stifle artistic freedom and free speech.
Despite Plesner’s good intentions and the worthiness of her personal mission to send aid to Darfur and to re-direct our focus from celebrity gossip to the dire need in Africa, her use of Louis Vuitton’s design does beg the question: is it really fair to vilify a brand by associating it with a genocide that has nothing to do with the company or its practices?
Louis Vuitton’s ethical plea, in a nutshell, is contained in The Hague’s January court order:
The unauthorized (and unnecessary) use of the Design is also causing serious detriment to the rights, as well as the name and reputation of LV and it’s products. Although LV has nothing to do whatsoever with the genocide in Darfur, a link is established between LV and it’s products on the one hand, and the situation in Darfur on the other hand. Naturally, this (unnecessary) use is very damaging to LV and there is no justification for this use through a reliance on the freedom of speech. There was none in 2008, and there certainly is not justification either for the new infringement in 2011.
It is worth pointing out that Plesner has focused on LV almost exclusively (she did do a series called Forbes/Darfur, and “Darfurnica” also contains an image of Victoria Beckham swinging a Hermes Birkin bag) as the symbol of misguided values — not only with her Living Simple t-shirts, but also, as spot designs and buttons on her website, and, in December of 2008, with her “Darfuitton” sculpture, executed for one of the Emergency Room art shows. Says Plesner on her site:
Emergency Room’s heart is a room where non apathetic artists run to express opinions about the emergencies of today, today before it is too late.
The work itself was mostly performance: “Darfuitton” was a huge paper handbag with the Living Simple multi-color copy of LV’s Murakami print on it. Plesner had fake “Paris Hiltons” and some victims of the atrocities in Darfur, sign the piece.
Take one moment to think about this, and you can understand why it would represent cause for worry to a fashion company which must have wondered why it was being singled out repeatedly for direct symbolic association with horrors that it in no way represents. For Louis Vuitton’s marketing and legal devisions it must seem that the artist is engaging them in a pointless and undeserved smear campaign.
No surprise, then, that, faced with the new “Darfurnica” painting, LV felt it necessary to put the screws, once and for all, to this renegade artist. But the fact that this renegade artist is an comely young woman with a cause that moves good hearts to passion was overlooked in the company’s legal strategy.
A quick scan of the articles covering the subject definitely shows that in trying to stop Nadia Plesner from painting the LV brand with party-colored associations of genocide, they managed to get tangled in a different net. The more Plesner pleads for public support against LV and The Hague’s injunction, the worse the brand looks for seeming indifferent, even hostile to Plesner’s cause. Most of the articles online sympathize heavily with Plesner, and many of the comments are full of venom. No matter that LV never asked to be singled out. No matter that they are, in a sense, being pirated for having a catchy design. The sad fact is, they’ve blown it.
Mistake: not examining what should have been exhibit number one (in the public sphere which the artist ironically scorns): Plesner’s long blond hair, sweet face, youth, and earnesty.
Mistake: not comprehending the heft of the damage already done: an association with the genicide in Darfur has been welded and seems unshakeable. And Plesner’s continuing appeals to fans and the media keep this association well alive. Says Plesner, “I can’t believe that our world has come to a place where protection of design and copyrights apparently is more important than protection of human rights.”
Mistake: taking their case to The Hague ex parte so that Nadia Plesner was not represented.
Mistake: asking the court to SLAPP her with huge monetary penalties.
But what SHOULD Louis Vuitton have done? Sit her down like a mother with a child and explain a basic notion of fairness? Bribe her with donations to her charity (which would then be discovered and used against them anyway)? Appeal to the hearts and minds of a hypocritical pop culture which pretends to loath conspicuous consumption while sporting T-shirts decorated with starving children? (Missing the irony, Ms. Plesner herself boasted on her site that she’d heard that, “Don Cheadle and Mia Farrow had offered to wear the t-shirt to help promote my campaign.” )
Keep asking questions, and send answers our way, because, honestly, we are stumped!
As Usual, These Things Get Even Stranger/Funnier
No good IP story can end without things getting really silly. Sometime in March, having heard of the Darfurnica case, someone or some group of persons calling themselves “Anonymous” launched “Operation Skankbag” in an attempt to support Nadia Plesner. Calling on all who cared to join in, the announcement, made in the form of a png, used bold, if grammatically flawed, revolutionary language to encourage “gentlemen” and “angry males” (???) to perform acts of lame mischief against LV:
Objective: we will use any non-physically violent method available to us to cause financial damage to Louis Vuitton. Method one was described on Reddit. It involves buying replicas of Louis Vuitton bags and giving them away to homeless people … Spreading negative messages about Louis Vuitton will work as well. Enter into Google “Louis Vuitton whores.” Spray graffiti about …
Well, you get it. Certainly not the powerful incendiary stuff you’d expect from tech savvy saboteurs!
Yet many bloggers jumped on it without asking questions — had the shit really hit the fan? Were Anonymous, our freedom-of-speech caped crusaders, they who trounced MasterCard and the Church of Scientology, were even THEY taking on the evil forces of the fashion industry?
No, not really.
As you can see by the announcement itself, Operation Skankbag was a dud, and it was quickly doused with the cold cold waters of “downvotes” on Reddit. Indeed, by some giddy-making, mystifying, faith-in-humanity-boosting force, reason seems to have won the day.
Reddit works by up and down votes on comments. Supporters of Operation Skankbag were pummeled with downvotes. Long strings of confusion led ultimately to this conclusion, very well put by infinite_chaos:
Anybody can make a statement, and if it’s a worthy statement, then it goes viral and thus the anonymous hive mind legion supports it. If it’s lame, it gets ignored, and the earth continues to spin oblivious. The whole point of anonymous is that it can be anyone.
The whole “anonymous can be anyone” advantage is that it’s something that goes both ways. It doesn’t mean any movement can be instantly forwarded under the Anonymous banner. It means it needs traction, it needs viral support, it needs the common support — because there are no PACs or groups or fundraising in Anonymous to forward a particular view — it’s the collective view of all of Anonymous that matters.
As TheFov said, if it was Anonymous, www.louisvuitton.com would be down. Why? Because that would signify a concrete, committed vote by thousands of individual Anons. It’s proof of the invisible democratic vote that is Anon.
It turned out that a majority of Reddit users shared opinions like this one by Inlawjosiewales:
Her use of the LV image was entirely superficial (surface-level message), as a symbol of conspicuous consumption. She was attacking LV’s brand image, which they have a right to try to protect. It isn’t like the artist was condemning LV’s labor practices (they don’t use sweatshops or exploited workers to make their expensive purses), or their investment policies (LV has no involvement in the suffering in The Sudan) she just used them because Paris Hilton has an LV purse. LV is no worse than Rolex or Audi or any other luxury brand. Redditors are wasting their time with a witch hunt, trying to be White Knights for an attractive Danish girl they will likely never meet, when they could focus on actually helping people in the Sudan by promoting aid projects. This is one of the least offensive high profile incidents of censorship out right now.
Still, seeking out results from a Google search of “Louis Vuitton whores,” we did find an amusing story written by an obvious Skank Op:
Kicked out of mcdonalds for my louis vuitton bag?!!?
i just got out of alternative school for the day and i felt like having a little after school snack (im a curvy girl, i need my nutrients), so i went to mcdonalds and ordered a double quarter pounder and large fries (and a caesar salad, cuz im tryna watch my figure). as soon as i put down my purse on the counter to get out my wallet the stupid cashier kinda gives me this weird look, and he calls the manager over and their laughing at me and he told me they dont serve my kind there!! i was like whatever, there is a kfc across the street. but as i was walking out of the door, their all yelling at me like “LOUIS VUITTON WHORE!!! LOUIS VUITTON WHORE!!!!” im never going back there. tell all your friends to boycott mcdonalds!
Back in the day, when Warhol painted soup cans and Going painted ketchup, there was a peace between art and merchandising. They were seen as two separate worlds, art and merchandising. Campbells Soup and Heinz Ketchup considered themselves lucky for the spotlight that art cast upon them. They lived happily side by side.
But then something happened. Whereas Pop art and photo-real art embraced our material obsessions, conceptual and political artists often do not. This can only mean that derivative works which employ copyrighted, or trademarked images, or other intellectual property, can be seen as a new kind of threat to corporations seeking to protect their brands.
There will, no doubt, be more cases like this in future. And it will be interesting to see how differently U.S. and European courts handle them. Keep in touch!