Is Anna Wintour more like Rosa Parks or Walt Disney?
Okay, so admittedly, that's not really the relevant question. But LOF's fashion law "issue of the day" does require you, faithful readers, to determine whether a potential Anna Wintour dispute is more similar to a widely publicized Rosa Parks case, or an equally famous case about Walt Disney. The goods in question are these cheeky t-shirts from Denmark:
Yes, that would be Anna Wintour on the left and Karl Lagerfeld on the right, each wearing a t-shirt -- does anyone still say "meta"? -- with the phrase "eco-yuppie" (or in Karl's case, just "eco-yup.") As eco-fashion website Ecouterre opines, "when you think of fashion icons Anna Wintour and Karl Lagerfeld, the words 'do-gooder' and 'responsible fashion' aren't exactly what spring to mind." But is the irreverent t-shirt manufacturer using the images of Wintour and Lagerfeld to comment on their ethical foibles, or simply to sell cute t-shirts?
As LAW OF FASHION has explained in the past, a manufacturer's motivation behind its use of celebrity likenesses carries heavy weight in trademark infringement and right of publicity lawsuits. Thus, in a 2003 case brought by civil-rights icon Rosa Parks against hip-hop group OutKast over a song titled "Rosa Parks," the Sixth Circuit Court of Appeals stated: "a title that uses a celebrity's name will be protected by the First Amendment unless the title is 'wholly unrelated' to the content of the work or was 'simply a disguised commercial advertisement for the sale of goods or services.'" (Emphasis added.) The song in question did refer to moving the "back of the bus," but unlike Rosa Parks, OutKast (perhaps influenced by the cool kids in elementary school) seemed to have no problem with riding in the rear:
Ah ha, hush that fuss
Everybody move to the back of the bus
Do you wanna bump and slump with us
We the type of people make the club get crunk
(Incidentally, LOF loves it when federal courts recite the words to rap songs, as the U.S. Supreme Court did in the 2 Live Crew case discussed on this blog last week.) The Sixth Circuit didn't hand Parks a total win, but it did rule that "there is a genuine issue of material fact regarding the question of whether the title is artistically relevant to the content of the song." (If it wasn't, OutKast's First Amendment defense was doomed.) The Supreme Court refused to hear an appeal, which meant the case had to be remanded for a trial... and that's where the case trail ends, probably with a confidential settlement.
Apart from the staggering expense of a trial, one reason the defendants, at least, might have been especially eager to settle, was that the Sixth Circuit -- though confronted only with the legalistic question of whether there was a "genuine dispute of material fact" requiring a trial -- made no attempt to conceal its views about the underlying merits of the case, stating, among other things:
- "If the requirement of 'relevance' is to have any meaning at all, it would not be unreasonable to conclude that the title Rosa Parks is not relevant to the content of the song in question."
- "The song is not claimed to be a satire, a parody or some other form of artistic expression that would be protected under the broad umbrella of the First Amendment."
- And the clincher: "[T]he fact that Defendants cry 'artist' and 'symbol' as reasons for appropriating Rosa Parks' name for a song title does not absolve them from potential liability for, in the words of Shakespeare, filching Rosa Parks' good name."
When an appellate court starts throwing barbs like that, it's probably time to throw in the towel. After all, even if you win on remand, you're just going to head right back up to that same appellate court again.
Compare the Rosa Parks case with a district court's 2009 opinion in Bourne Co. v. Twentieth Century Fox Film Corp., better known as the "When You Wish Upon a Jew" case (so named for the song at issue.) This copyright-centric lawsuit concerned a Family Guy episode in which the lead character, Peter Griffin, laments the sorry state of his family's finances to the thinly-veiled tune of the classic Pinocchio song "When You Wish Upon A Star." The song concludes with these lyrics:
Where to find a Baum or Steen or Stein
To teach me how to whine and do my taxes?
Though by many they're abhorred
Hebrew people I've adored
Even though they killed my Lord
I need a Jew
(An alternate version replaced the penultimate line with "I don't think they killed my Lord.")
This time, the court sided with the defendants, the owners and distributors of Family Guy. The court granted their motion for summary judgment on First Amendment grounds, finding that "[t]he song can be 'reasonably perceived' to be commenting that any categorical view of a race of people is childish and simplistic, just like wishing upon a star." More to the point, for our purposes, the court agreed that "Defendants have established sufficient facts for the Court to find that one of their intended comments in parodying 'When you Wish Upon a Star' related to the reputation of Walt Disney as an anti-Semite and that such a comment may be 'reasonably perceived.'" (Emphasis added.) No appeal by the plaintiff here.
So, to return to the issue at hand, is Anna Wintour (let's throw in Karl Lagerfeld, too) more like Rosa Parks or Walt Disney? That is, is the use of their likenesses a mere marketing tool to sell t-shirts, or can the use of their images be "reasonably perceived" to comment on the celebrities' ecological shortcomings?
In honor of Judgment Day tomorrow, LOF will withhold judgment. But that doesn't mean you have to.
[This post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities. Any views expressed herein are those of the writer on the particular date of this post, and should not necessarily be attributed to his law firm or its clients.]