New York-based artist Julian Rivera is taking on Walmart and Ellen DeGeneres in a copyright and trademark infringement lawsuit.
The artist alleges that his signature design — a line drawing of a heart that encapsulates the word “love”— is featured prominently in the spring collection of DeGeneres’ EV1 clothing line at Walmart. In a complaint filed in the U.S. District Court Central District of California, Rivera’s legal teams are demanding a jury trial. The filing claims that Walmart and DeGeneres promoted the EV1 collection — including the infringing goods — directly to millions of consumers through their social media accounts. In addition, DeGeneres promoted the goods in question during a segment of her talk show and gave $150 gift cards to guests in her studio audience so that they “can shop the new spring collection.”
Representatives for DeGeneres deferred comment to Walmart. A Walmart spokesman said in a statement, “Walmart is an intellectual property owner and respects the intellectual property rights of others. Once we are served with the complaint, we will respond appropriately with the court.”
Claiming that the infringing pieces have led to “many millions of dollars in profits,” Rivera’s complaint alleges that his demand to cease use of his work was rebuffed. One of his attorneys, Jeff Gluck of the Gluck Firm, said Tuesday that the cease and desist was sent in May. The defendants allegedly claimed “they had not copied the work, that their work was significantly different and that Rivera’s design reflected no appreciable creativity.”
The design at the heart of the legal fight was created in 2011 and first published in 2012, according to the complaint. Rivera has “very rarely made his original art available as part of corporate advertising campaigns — to avoid diminishing the value of his work,” according to the filing. Rivera’s team stated that people who recognized his design in the EV1 collection would have concluded that Rivera “sold out.”
The complaint names Walmart Inc., Walmart Apollo LLC — the limited liability company that owns more than 1,000 trademarks used by Walmart including the EV1 brand — and DeGeneres. It noted that the comedian and actress has a highly rated syndicated daytime television talk show and an “incredible social media following” with more than 75 million followers on Instagram, 78 million-plus on Twitter and upward of 32 million on Facebook.
The complaints contends that Rivera uses the design as a signature/logo on his art pieces, and is known to use it separately as stickers as a promotional device. (That practice was one used with great success by the street artist Shepard Fairey, who slapped his “Obey” and “Obey the Giant” stickers in random public places.)
Rivera’s filing includes various photos of the EV1 spring collection including a flip-flop, camouflage V-neck top and a hoodie imprinted with what is said to be “a slavish copy” of his design next to the EV1 trademark and “E” logo. Rivera’s lawyers claim that the defendants received, and continue to receive, income and profits. His team is asking that all products with what he considers to be his design be removed from all stores. Rivera is also seeking compensation for present and future damages, profits, pre-judgment and interest. Gluck declined to specify the amount Rivera is seeing in damages.
Gluck said Tuesday, “Our client asked Walmart and Ellen DeGeneres to discontinue selling these blatantly infringing products. They refused and forced our client to file this lawsuit.”