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

from the sad dept

Wed, Mar 16th 2011 10:59am — Mike Masnick

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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Filed Under: europe, free expression, nadia plesner, trademark

43 Comments

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ChurchHatesTucker (profile), 16 Mar 2011 @ 11:13am

Louis Vuitton sucks
Bring it.
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Anonymous Coward, 16 Mar 2011 @ 11:22am

Everybody knows that making money is way more important than making art! I hope they burn her art. That will teach her a valuable lesson about not making statements using the decorations of the upper class, or as I like to call them, the better class.

And when is Louis Vuitton going to start suing all those lame hipsters with Louis Vuitton tattoos?
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Anonymous Coward, 16 Mar 2011 @ 11:24am

Re: Louis Vuitton sucks
The domain name is available in both the .net and .org TLDs. Unfortunately Louis Vuitton itself took the .com variant.
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Anonymous Coward, 16 Mar 2011 @ 11:27am

"I recognize that Europe doesn't think as highly of free speech rights as we do in the US..."

Ouch. That hurt. At least over here, government agencies do not treat us as criminals by default.

Perhaps you are confusing certain characters (*cough* *cough* Sarkozy *cough*) with the whole of Europe?
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Anonymous Coward, 16 Mar 2011 @ 11:28am

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?

Mike, can you explain how this is parody of Louis Vuitton? That position seems untenable to me.
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Daph, 16 Mar 2011 @ 11:31am

Talk about an overinflated sense of importance...I wouldn't have known it was a Vuitoon bag or a Home Depot bag.

Louis Vuittton HAS NO MEANING FOR ME nor, I daresay, billions like me.

I only know of them as IP-abusing tyrants thanks to their behavior.
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Nina Paley (profile), 16 Mar 2011 @ 11:34am

moron in a hurry
As a moron in a hurry, I was confused. I thought the painting was a Louis Vuitton bag. I only suspected it was a counterfeit because it cost less.
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k, 16 Mar 2011 @ 11:40am

Note that your quote is the text of the ex parte application as filed and drafted by LVuitton, which is incorporated in the decision. That does not necessarily mean the court agrees. Your article suggests otherwise.

Only the last three pages contain the court's own reasoning and the judgment (2 - adjucation and from thereon).
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Anonymous Coward, 16 Mar 2011 @ 11:49am

Re:
Note that your quote is the text of the ex parte application as filed and drafted by LVuitton, which is incorporated in the decision. That does not necessarily mean the court agrees. Your article suggests otherwise.

Only the last three pages contain the court's own reasoning and the judgment (2 - adjucation and from thereon).

LOL! Nice misrepresentation, Mike.
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Steven (profile), 16 Mar 2011 @ 11:51am

Not Quite Louis
"...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..."

By their own logic she would just be setting herself up to be sued by DeBeers, Mercedes, or Sony.
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Gwiz (profile), 16 Mar 2011 @ 11:52am

Re:
I wouldn't have known it was a Vuitoon bag or a Home Depot bag.

Me neither. Looks like the reusable "green" grocery bag I bought from my local supermarket to me.
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scarr (profile), 16 Mar 2011 @ 11:55am

It's the medium too.
If Nadia Plesner was a photographer, and used a Louis Vuitton bag on the arm of a victim (well, refugee, or some equivalent alternative) in the same way, LV wouldn't have any claim of violating their IP.
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Steven (profile), 16 Mar 2011 @ 12:03pm

Wrong picture?
The picture in the post is not the same as the picture in the court order. Not that it really matters much.
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Mike Masnick (profile), 16 Mar 2011 @ 12:23pm

Re:
Note that your quote is the text of the ex parte application as filed and drafted by LVuitton, which is incorporated in the decision. That does not necessarily mean the court agrees. Your article suggests otherwise

Good point. I've updated the post to clarify, as that was not at all clear. Sorry about that.
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Mike Masnick (profile), 16 Mar 2011 @ 12:24pm

Re: Re:
LOL! Nice misrepresentation, Mike.

It was a simple error, as it was not clear from the document. I have since corrected and updated. Not sure why you choose to believe that everything has some ulterior motive. I don't think this changes the key points in the post.
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Anonymous Coward, 16 Mar 2011 @ 12:31pm

Re:
"Ouch. That hurt. At least over here, government agencies do not treat us as criminals by default."

No - they treat you like criminals if a large company says you are and makes a judgement against you without you being able to defend yourself.
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Qritiqal (profile), 16 Mar 2011 @ 12:35pm

Re:
OH! I had thought Louis Vuitton manufactured those people, but I guess you're correct: they're just tattoos.
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Anonymous Coward, 16 Mar 2011 @ 12:49pm

Re: How...
It doesn't even have to be a direct parody of LV. It is a parody of the style, and the lifestyle. What is "untenable" about it? How, in YOUR mind, does this not seem like a parody?
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pegr, 16 Mar 2011 @ 12:53pm

Anonymous?
Operation Skankbag!

(Google it...)
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Anonymous Coward, 16 Mar 2011 @ 12:59pm

Re: Re: Re:
Glad you fixed it. I'd still like an explanation of how this is parody, if can find a moment to explain that. I've noticed a pattern of you referring to things as parody. The intent seems to be to bring it under the fair use umbrella. The problem is that seldom are the things you describe as parody actually parodic. Certainly a copyright expert such as yourself knows the difference between parody and satire. Yet somehow, you conflate the two with surprising regularity.
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Anonymous Coward, 16 Mar 2011 @ 1:13pm

Re: Re: Re: Re:
If you are the Anon I think you are this seems to be your pattern over the last couple of days.
1. pick a word from the article (parody, admit, etc.)
2. make a ridiculous effort to explain how Mike's word choice is part of some neocon revolution.
3. in the process above, completely fail to understand the word chosen or the irony of your own posts where you essentially prove that you don't know what you are talking about.

To quote wikipedia:
in contemporary usage, is a work created to mock, comment on, or make fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation.

I think it is ironic to see a refuge holding a $2,000 Louis Vuitton bag. I also think it is ironic that the court seems to have forgotten what the word irony means.

Also from wikipedia:
In the broader sense of Greek parodia, parody can occur when whole elements of one work are lifted out of their context and reused, not necessarily to be ridiculed.
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Anonymous Coward, 16 Mar 2011 @ 1:17pm

Re: Re: Re: Re: Re:
As noted, he's going with "parody" because then it's fair use. I believe he intentionally chose that word with U.S. copyright laws in mind. I'm just wondering what his argument is that this is parody of L.V. Parody is supposed to be obvious. I see nothing about this use of L.V.'s product that is obvious parody of L.V.
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Anonymous Coward, 16 Mar 2011 @ 1:18pm

Could Weird Al Yankovic "make it" in today's culture vs. corporate environment?
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Anonymous Coward, 16 Mar 2011 @ 1:20pm

Re: Re: Re: Re:
Yet somehow, you conflate the two with surprising regularity

Yet somehow, you fail to explain how the general principles being discussed here would change if something is a satire instead of a parody. Certainly, an expert such as yourself knows the difference between trolling and actually adding something useful to the discussion.
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Nelson Cruz, 16 Mar 2011 @ 1:24pm

The court order also infringes!
Notice how the court order also makes use of the LV bag and the black kid with the LV look-a-like bag. Isn't that also infringment?

If an artist can't use it, how come the court can?
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Anonymous Coward, 16 Mar 2011 @ 1:29pm

they dropped the case
You gotta be quick in this day and age Techdirt!

http://translate.google.com/translate?js=n&prev=_t&hl=en&ie=UTF-8&l ayout=2&eotf=1&sl=sv&tl=en&u=http%3A%2F%2Fwww.dn.se%2Fekonomi%2Flouis-vuitton-berett -att-backa
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Anonymous Coward, 16 Mar 2011 @ 1:37pm

Re: Re: Re: Re: Re: Re:
I know you don't see obvious parody. You also don't seem to know what parody is ... and arguable neither does the US court system since they have typically taken one of the most narrow views of it.

For those that do understand what parody is, I think it is pretty obvious that she is making a statement on the excess of US culture. Specifically I think she is trying to point out that Americans are equally if not more interested in Paris Hilton's fashion choices than they are in genocide.

If this was the US, and keep in mind that it is not, I don't think they would have a case in the first place seeing as she is neither using the LV logo (trademark) and she isn't creating a purse or any "fashion merchandise" (which could arguably be covered under copyright, though unlikely).
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Steve, 16 Mar 2011 @ 1:51pm

Take actual pictures LV merchandise
We should start a movement to take pictures of actual LV bags and merchandise in the hands of as many people and situations LV would find objectionable and post them on the web.
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Mike Masnick (profile), 16 Mar 2011 @ 4:26pm

Re: Re: Re: Re: Re: Re:
As noted, he's going with "parody" because then it's fair use. I believe he intentionally chose that word with U.S. copyright laws in mind. I'm just wondering what his argument is that this is parody of L.V. Parody is supposed to be obvious. I see nothing about this use of L.V.'s product that is obvious parody of L.V

No. I didn't choose the word "parody" because of US copyright law. I mean, why would I when (a) this is a trademark issue, not a copyright issue and (b) it's in Europe where fair use does not apply.

I chose parody because it is a parody. It's parodying what the artists feels are excessive lifestyle choices, of which LV is a major player.
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Daph, 16 Mar 2011 @ 5:46pm

Re: Take actual pictures LV merchandise
I use mine to carry home the pooplets proferred so liberally by my chihuahahas on our evening strolls.

I am a good citizen.
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Anonymous Coward, 16 Mar 2011 @ 7:58pm

The court makes the bizarre and totally unsubstantiated claim that "she caused great damage to Louis Vuitton." How? Honestly, how?

Louis Vuitton has a secret they don't want anyone to know.
"Like my briefcase? Department issued. Baby hide. 100% genuine human baby hide."
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Anonymous Coward, 16 Mar 2011 @ 9:32pm

Re: Re: Re: Re: Re: Re: Re:
Oh Mike, I can see you've never been to Africa. It's the chic thing for starving African children to have high-end purses. How can it be parody when it's so obviously true?
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Any Mouse (profile), 16 Mar 2011 @ 11:46pm

Re: Wrong picture?
The picture in the court order was re-used inside the work shown in the post. Look carefully, you will find the emaciated child with the bag.
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A, 17 Mar 2011 @ 5:01am

Freedom of speach
"I recognize that Europe doesn't think as highly of free speech rights as we do in the US"

First off, Europe is a big place containing 50 countries. Even if you are just talking about the European Union that contains 27 countries, all of which hold a wide range of laws and values, some places put more store in freedom of speech than others. England has had laws guaranteeing the freedom of speech since 1689, 100 years before America created its constitution, and France, like America, has affirmed freedom of speech as an inalienable right in their constitution since 1789.

In fact the laws governing the freedom of speech and information in England are probably more liberal than the states. For instance, America has privacy laws about the sale and distribution of photographs even if the photographer was on public land when taking to photo, in England if you take the picture on public property you have the right to do what you want with it and distribute it as you please.

And given the huge controversies regarding wikileaks and the numerous plans which have been leaked of large American corporations and of the American government to illegally silence Wikileaks I think you should be more cautious before dismissing other countries attitudes to rights as beneath your own.
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Anonymous Coward, 17 Mar 2011 @ 6:38am

Re: Re:
And how is that any different than what happens in the US?
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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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Anonymous Coward, 17 Mar 2011 @ 1:02pm

Re:
Europe does have a lot more limitations on free speech than does America. You do know that it is illegal in many parts of Europe to deny the holocaust or speak positively of Nazis? That would be free speech being limited. In America we don't do things like that. Further, the laws on copyright and intellectual property are far stronger in Europe than they are in America resulting in less ability for individuals to re-appropriate intellectual property for artistic endeavors.
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Anonymous Coward, 17 Mar 2011 @ 2:15pm

Re: Tarnishment?
Mike's not here to give any kind of legal analysis. Whichever part of the law affects his beloved pirates negatively is stupid and bad--that's his position.

You, on the other hand, are a wonderful poster. I hope you can post more often.
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Anonymous Coward, 17 Mar 2011 @ 2:16pm

Re: Re: Re: Re: Re: Re: Re:
This is not a parody of L.V. You appear to not understand what parody actually is. It's satire.
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another mike (profile), 17 Mar 2011 @ 2:45pm

i only see two trademarks, neither belong to LV.
I can see trademarks of Paramount Pictures and Facebook in the included image but I wouldn't know a Louis Vuitton handbag from a dead raccoon.
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Ole Husgaard, 4 May 2011 @ 11:35am

Finally some good news
Danish media is reporting that the court decision has been changed today. Nadia Plesner is no longer forbidden from showing the painting. The 5000 EUR/day fine has been reversed. And Louis Vuitton has been ordered to pay the fees of Plesners lawyers in the court case.

I currently only have a link in Danish; use Google Translate if you do not understand the language: http://www.dr.dk/Nyheder/Kultur/2011/05/04/150457.htm
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