This week in fashion law: Céline Dion = IP bully?, Forever 21 sued (again) for knockoffs, and the fashion copyfight turns nasty

Posted by Charles Colman

Without further ado (actually, without any ado at all), this week in fashion law:

 

Smells like a bully


Céline Dion’s team has launched a PR blitz for her latest scent, “Signature.”  In yesterday’s WWD, a representative from Céline’s perfume supplier waxed poetic: “The fragrance category is all about dreams, and Céline Dion has shown repeatedly that she is an icon who touches people.”

 

The latest person touched by Céline, or at least by her lawyers, is Nick Angiolillo, the creator of the blog “Ridiculous Pictures of Céline Dion”, which is was exactly what it sounds like... 

 

 

 

 

One week ago, Angiolillo received a cease-and-desist letter demanding that the entire blog be taken down.  Angiolillo did not reveal the specific legal claims made in the letter, but they’re likely to be claims for copyright (which fail on various grounds, including that the photographers who took the photos, or their media outlet employers—and not Céline—own any relevant copyrights) and for “right of publicity” (which fail because some commercial use is virtually always required for such a claim—not to mention the First Amendment limitations on the right.)  The blog’s final post also laments, insightfully, that its content might very well have been “within the realm of ‘fair use,’” but explains that there wasn’t time or money to respond to the IP bullies Céline’s people through an attorney. 

 

After hearing the news, IP activist blog techdirt asked, rhetorically, “how thin skinned and vain a celebrity must you be to shut down a blog showing funny pictures of you?”  My guess: this has less to do with vanity and more to do with the estimated $40 million in revenue generated by Céline’s seven existing fragrances this year alone—along with the rest of her even more lucrative empire.


Wait, does this episode remind you of anything?  Like, say, a recent dustup between Forever 21 and another harmless parody blog created by a onetime fan?

 


Forever infringing


Speaking of Forever 21 and intellectual property, the company was in the news yet again this week for ripping off others’ designs.  The latest victim: Feral Childe, which has sued Forever 21 for reproducing FC’s hand-drawn “Teepees” print to the, well, Tee.  (Fabric patterns, unlike fashion design in general, are protected by copyright under existing law.)


Why does this keep happening, you might wonder?  In connection with a probing article published on Sunday, The Guardian interviewed Forever 21’s founder and determined that the company’s intellectual property policy sounds something like this: “[F21’s] buyers simply trust their vendors not to copy other labels’ designs.”  Naïveté aside, it’s important to point out that this policy is legally ineffective: civil copyright and trademark infringement are “strict liability” offenses, usually requiring no knowledge on the part of a direct infringer—as Forever 21 should have learned over the course of the 50+ infringement lawsuits brought against it in the last decade.  But it’s quite possible that money, not stupidity, is the main determinant here: as Professor Susan Scafidi speculated in an interview with Jezebel on Wednesday, this might all be part of the company’s business model—and the strategy could even be cheaper than a hypothetical approach that included paying for licenses.

 


The fashion copyfight takes a nasty turn


You might remember that the CFDA and some of its more loyal members headed down to D.C. last week for a House subcommittee hearing on the latest legislation that would grant additional intellectual property protection to unique fashion designs.  (Afterward, the consensus seemed to be that there was not much new to say, and thus not much new said, on either side of the issue.)  The bill has been controversial ever since it emerged in a broader form four years ago, but since last week’s hearing, the debate has turned downright nasty.

 

Steven Kolb, Executive Director of the CFDA, the bill’s biggest champion, tweeted on Wednesday that he found it “[a]stonishing how some academics claim knowledge of how an industry works just to make a name for him her self.”  Presumably, Kolb was referring to Christopher Sprigman of the University of Virginia, who testified in opposition to the bill at last Friday’s hearing.  Sprigman first entered the copyright-for-fashion fray in 2006 when he co-authored a provocative paper titled “The Piracy Paradox” (the paradox being that the fashion industry arguably benefits from piracy by virtue of the “induced obsolescence” it causes, which speeds up the production and consumption cycle.)

 

But barbs have been coming from the other side of the debate, too, with academics targeting academics.  An anonymous blogger known as “untenuredcolleague,” who has written that “[t]he campaign to enact copyright protection for fashion is looking more and more like a rat’s nest of corruption,” followed up the hearing with accusations of plagiarism against academics who have advocated for increased protection against knockoffs.

 

This can only get uglier.

 

 

And in other news


  • David LaChapelle’s copyright case against Rihanna for allegedly lifting imagery from his photographs for her “S&M” music video will move forward, albeit with LaChapelle’s trademark and unfair competition claims dismissed.  Rihanna’s attorneys apparently failed to persuade the court that the singer had only used LaChappelle’s ideas and not his expression.

 

  • A court win for Crocs reminds us that patents, though infrequently discussed in the context of apparel, can be useful.  Unfortunately, the ruling likely indicates that some people are still wearing Crocs.

 

 

  • A Florida school board has voted to ban “extreme hairstyles,” “unnatural hair colors,” and “disruptive makeup” from its district.  This falls on the heels of another constitutionally questionable policy choice, in the form of a bill that would ban “saggy pants” throughout the Police Sunshine State.

 

  • In the case that everyone who can afford $800 shoes is watching, Christian Louboutin filed its reply brief on Tuesday, claiming that Yves Saint Laurent’s only excuse at the end of the day is that “fashion made them do it.”  The briefing culminated in a showdown in Manhattan federal court on Friday, which LOF summarized here; though the judge expressed serious concerns about Louboutin's position, he reserved judgment on Loub's requested preliminary injunction pending further reflection.


Tune in next week for my roundup of colorful fashion law news -- and remember, as always, that you can get the scoop one day sooner by reading my Friday CATWALK JUSTICE column on Styleite.com


 

[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.]