This week in fashion law: All you need is (Courtney) Love; more detective work on the TEEN MODEL case; Gaga vs. Clueless

Posted by Charles Colman

There is SO much to cover in this week's CATWALK JUSTICE column on Styleite.com, where, as you know, this writer rounds up the best (and worst) of the week's fashion law news:


  • Lindsay Lohan's latest defamation/right of publicity suit (and the marked rise in "Twibel" lawsuits; that's "Twitter" + "libel" -- keep up!)





  • Strange bedfellows in fashion licensing (Fendi and Maserati?)


  • The Hell's Angels ride again... to the courthouse, for yet another instance of alleged trademark infringement



  • Reflections on which of two cases (one involving Gaga, one involving "Clueless") would be the case of a fashion lawyer's lifetime


But if you're too lazy to mosey on over to Styleite.com, here's the scoop:


Understanding Twibel: All you need is Love (and LiLo)


Just weeks after Lindsay Lohan narrowly escaped a Florida lawsuit over self-tanner with the help of four big-name law firms, she's heading back to court, this time as the plaintiff in a defamation and right of publicity suit.  Perhaps a bit cash-strapped after the Florida debacle, LiLo's lead attorney in this suit is a solo practitioner who promises to charge "no fee unless we win."  (That same attorney represented LiLo in a 2010 lawsuit against E*Trade over a Superbowl commercial that featured a boyfriend-stealing, "milkaholic" baby allegedly modeled after the actress.)


Lohan latest legal adventure concerns a song by by Ne-Yo and Afrojack, "Give Me Everything," in which the aptly-named Pitbull raps: "Hustlers move aside, so I'm tiptoein', to keep flowin', I got it locked up like Lindsay Lohan."  LiLo's legal complaint, apparently drafted with excessive reliance on Thesaurus.com, alleges that "the lyrics, by virtue of [their] wide appeal, condemnation, excoriation, disparaging or defamatory statements by the defendants regarding the plaintiff are destined to do irreparable harm to the plaintiff."


Pitbull has claimed, implausibly, that the lyric at issue does not refer to LiLo's stint up the river, but rather conveys the "positive message" that "if you got it locked up [like LiLo does], it means you run [the show.]"  Um, right.  In this writer's view, Pitbull's strained interpretation of the lyric can only hurt his case; truth is an absolute defense to a claim of defamation, and right of publicity claims are a tough sell when 1) they are premised on the content of artistic -- as opposed to purely commercial -- works, and 2) the defendant's use of the plaintiff's name or image was "fleeting and incidental," and 3) the plaintiff's name or image was used in connection with newsworthy matters.  We could debate how "newsworthy" LiLo's stint in prison was, but the fact that googling "lohan" and "prison" yields 13,600,000 results sort of speaks for itself.  In other words, this could be a long rainbow with no pot of gold at the end for Lohan's lawyer.


In any event, the lawsuit has gotten people talking about the recent rise in defamation lawsuits, especially on Twitter -- can we make "Twibel" (Twitter + libel) happen? -- perhaps due to, in the words of Hollywood Reporter's Eriq Gardner, a new "digital environment where people have a microphone to shout whatever they'd like."  Interestingly -- if unsurprisingly -- the first Twibel lawsuit was filed in March 2009 against Courtney Love, by a fashion designer whom Love had called, inter alia, a "nasty hoesbag lying thief."  (Love paid to settle that suit in January, only to be hit with yet another Twibel suit in May.)  For this legal lesson, all you need is Love: false statements on Twitter are just as actionable as statements made through more traditional media.


Meta-fashion gets meta-meta

This week in meta-meta-fashion news, Thursday Friday complained to Women's Wear Daily this week about counterfeit versions of its Birkin-inspired "Together Bag" popping up on eBay.  Recall that the tote in question, which features images of Hermès' $6000 Birkin bag printed on each of its four sides, got Thursday Friday sued in January.  After T/F lost its motion to dismiss, the parties settled, and the Birkin tote was pulled off of T/F's website.  (Undeterred, T/F promptly released its next model, which is -- surprise! -- a tote with images of another expensive handbag (Miu Miu's $1750 "Hobo" bag) on each side. 


While Thursday Friday has apparently not been hit with a lawsuit by Miu Miu -- which could be more of an uphill battle for Miu Miu, because the Hobo bag isn't nearly as well known as the Birkin -- T/F has received other bad news in the form of the Birkin tote counterfeits.  To dispel potential confusion about the legal mechanics of this situation, the counterfeit implicates the rights of both Hermès and Thursday Friday: Hermès, for many of the reasons addressed in its lawsuit against T/F, and Thursday Friday, because the counterfeits are sold under the name "Together Bag," which refers not only to T/F's Birkin tote, but to its entire line of bags-on-bags.  In other words, the term "Together Bag" is one of the trademarks under the Thursday Friday umbrella; by using the mark in their eBay postings, the counterfeiters are, well, engaging in counterfeiting.  (N.B. Thursday Friday could also theoretically base a legal claim on trade dress rights in its product design, but if you want to get that far afield in trademark law principles, you'll have to visit my blog, LAW OF FASHION.  Ditto for an important recent development in a case about the right to put the "Betty Boop" character and name on t-shirts; a federal appellate court withdrew an earlier decision concerning "aesthetic functionality," which I had just finished a magazine article on, and now have to rewrite by the end of the day.  It's a farshtunkeneh mess.)


Teen model suit: more than meets the eye?

But my troubles don't seem so bad in comparison to photographer Jason Lee Parry's, who was the first-named defendant in a lawsuit by parents of underage model Hailey Clauson concerning allegedly "salacious" photos taken for Urban Outfitters.  You'll recall that last week, when news of the lawsuit had just come out, CATWALK JUSTICE wasn't too optimistic about Parry and Urban's chances of prevailing in the lawsuit.  But the more this writer learns about the background of the suit, the sketchier the lawsuit seems.


First, as pointed out by Alice Davis, a videographer who assisted Parry in the shoot, "[Hailey] is a professional model" who "posed herself" in the Urban shoot.  Indeed, rather than hide under the covers after the photos came out, now 16-year-old Hailey posted them on her facebook page.  Not exactly the exploitative narrative laid out in the parents' complaint. 


Further, as I explain on LAW OF FASHION, the crux of the lawsuit appears to be the photographer's failure to obtain written consent from the parents, who apparently knew about the photo shoot "and its racy poses" and did not object at the time -- or for a year-and-a-half after that.  If the parents did, in fact, know about the nature of the shoot, they might face a couple of obstacles in their attempt to squeeze Urban for cash: 1) consent can sometimes be implied from the circumstances, rather than explicit; and 2) a party who allows another to detrimentally rely on a mistaken belief, especially for an extended period of time, may be estopped from complaining about actions taken under such reliance.


Of course, none of this has stopped the mainstream media from touting the story as "land[ing] smack in the middle of a global spasm of controversy over the sexualization of young girls.”  ABC, the outlet responsible for this quote, goes on to report that certain "psychological experts" are worried "that our culture and our corporations are stealing girls’ childhood.”  (Um, double-standard!  Where are the rallying cries over 17-year-old Patrick Schwarzenegger's "salacious" Hudson Jeans billboard?)


Bombastic though it may be, this news coverage can't be good for Jason Lee Parry, who appears not to have benefited from the expert legal coaching that the owners of Thursday Friday have had.  Parry failed to live up to his name by giving ABC the following strategically ill-advised quotes:


  • “I look at it and think, ‘this is a really cool shot.’”


  • “Her facial expression looks tough.  Look at that, you can’t tell me that doesn’t look tough.”


  • “Is she showing any private parts – that’s the real question.”


*Sigh of relief that my firm isn't representing Parry.*


To be fair to ABC, its reporter did conclude by pointing out that the "controversy" surrounding the sexualization of underage girls is nothing new; a 1980 ad featuring a "salaciously" posed 15-year-old Brooke Shields shows that, in the wise words of Battlestar Galactica, "all of this has happened before, and all of it will happen again."


Levi’s loves litigation


As I've has explained before, Levi's is an unusually litigious apparel company.  But it turns out that it's not just V-shaped stitching on back pockets that makes Levi's blood boil; they don't much like retailers second ACTUAL Levi's secondhand, either.  Online Levi's retailer Papikian Enterprises learned this the hard way when it was sued by Levi's in November 2010, and has been taught the same lesson pretty much every day since then -- especially this past Wednesday, when the judge presiding over the case largely denied Papikian's motion for summary judgment.


If you ask any trademark lawyer on the street (the tough part is spotting one -- I'll tell you how sometime), he or she will explain to you that a variety of legal rules protect secondhand retailers from trademark infringement claims, including the "first-sale doctrine" and the defense of "nominative fair use."  (Note: Copyright law has similarly-named, but substantively different rules.)  However, as this week's decision in Levi's v. Papikian Enterprises illustrates, taking advantage of these rules is easier said than done.  The court basically recognized that a secondhand retailer could potentially get off the hook for using "Levi's" -- and maybe its logo -- to sell genuine Levi's jeans, employing domain names like 501usa.com, and engaging in similar conduct... but that Papikian hadn't produced enough evidence to win summary judgment on any of these issues.  The court did throw out a claim that would have required it to interpret European trademark law, but this will provide little consolation, since Levi's can just turn around and sue Papikian for these claims in Europe.

In short, secondhand retailers: read this opinion.  Carefully.  Especially if you sell Levi's jeans.  In fact, it's probably safer for all of us to just stop wearing Levi's altogether.


Bullet points

 

  • Hell’s Angels has sued another fashion company for allegedly misusing its intellectual property: this time, the target is Wildfox (and its distributor, Amazon.com) and the offending item is a punctionally challenged t-shirt that says "My boyfriends a Hells Angel."  This raises all sorts of complicated trademark issues, some of which are -- believe it or not -- at issue in the Betty Boop case I mentioned earlier (how's that for contrast?)  But given the economics of the case and the, um, scariness of the plaintiffs, the case should settle quickly.

 

 

  • Gaga has designs to design.  The project: creating costumes for an off-Broadway play; the creative partner: Gaga's little sister.  The clothes, to the disappointment of some, will be “relatively normal and wearable.”   Now, one hopes business doesn't get in the way of the designers' sisterly relationship, but if they do have a falling out, the dispute might well be the case of a fashion lawyer’s lifetime, raising both joint authorship and cutting-edge copyrightability issues.

 

 

[This post and all of the content located at the linked web pages are for entertainment and informational purposes only, and do not constitute legal advice or create an attorney-client relationship among any individuals or entities.  Any views expressed in this post or at the linked web pages 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.]