from the sad dept
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.
Filed Under: europe, free expression, nadia plesner, trademark
