While many brands, such as Forever 21, Gucci and Puma, are busy fighting over copied garments and accessories, memes may be the next big battleground. Speaking of copying, the Kardashians and Jenners have shown us how carefully merch must be monitored in order to avoid both seething press and legal ramifications. And despite the Supreme Court’s decision in Apple v. Samsung, brands are not slowing down their international patent filing efforts.
That’s My Meme!
Fashion loves a good meme. Gucci, for instance, dedicated an entire campaign to the use of memes — the virally transmitted cultural symbols or social ideas — in an attempt to sell watches to Millennial consumers. But as brands continue to rely on memes to gain traction on social media, the number of lawsuits in this area is slowly growing as well.
Two years after the widespread shaming of meme star The Fat Jewish and the lawsuit that the creators of the Keyboard Cat and Nyan Cat memes filed against 5th Cell Media and Warner Bros. for copyright and trademark infringement, rapper Ludacris has been slapped with a copyright infringement suit over a meme.
According to digital media company LittleThings Inc.’s complaint, which was filed in the U.S. District Court for the Southern District of New York, Ludacris used one of its memes without authorization, giving rise to claims of copyright infringement. Calling Ludacris’ posting of the meme — entitled “Boob Sweat” — to his personal Instagram account “cyberpiracy,” LittleThings has asked the court to award it “all ill-gotten gains and profits resulting from [Ludacris’] inequitable activities.”
While many people and brands still largely — albeit inaccurately — treat memes as free to use without authorization from the copyright holder, who, in practice, can often be difficult to locate given the viral nature of the web’s most sought-after memes, which are often shared without credit to the creator, meme owners are starting to take a stand against such usage. Stay tuned on this front. There will likely be more lawsuits to come if brands and celebrities are not careful.
When Merch Goes Wrong
In one of the latest Kardashian-Jenner missteps, the family’s youngest members, Kendall and Kylie Jenner, released a collection of limited-edition “vintage” T-shirts last week, superimposing their own faces and “KK” over famous album art and images of iconic musicians, such as Tupac and The Notorious B.I.G. Unsurprisingly, the Ts — which also made use of Metallica, Pink Floyd and Black Sabbath album art — did not go over well.
Countless articles and even more social media posts were dedicated to calling out the collection — and its famous founders — for being “disgusting,” “exploitative” and “disrespectful.” And legal action soon followed.
The Doors were first to take charge, sending the sisters’ company a strongly worded cease and desist letter, demanding that they immediately pull the $125 shirts that bear The Doors’ imagery. The late Notorious B.I.G.’s mother Voletta Wallace spoke out via Instagram, saying that her son’s estate had not been contacted regarding the use of any images, which gives rise to the legal concerns at play in the situation.
Aside from potential copyright infringement claims — for the use of the original imagery at issue without authorization from the copyright holders — right of publicity law comes into play. This potential cause of action is particularly striking since the Jenners’ brand is headquartered in the celebrity-friendly state of California, where publicity rights can be applied somewhat liberally.
In California, state law provides a claim for the unauthorized use of another’s “name, voice, signature, photograph or likeness” on products or merchandise, or for the purposes of advertising or promotion. Additionally, post-mortem rights are available for up to 70 years after the death of a famous individual, which is relevant, as both The Notorious B.I.G. and Tupac died in the late Nineties.
The Jenner sisters apologized in posts on Twitter on Thursday, and said, “The T-shirts have been pulled from retail and all images have been removed.” Such corrective action does not necessarily do away with the affected musicians’ or the estates of the late rappers’ legal claims. And, indeed, on Friday photographer Michael Miller filed suit against the sisters in California federal court for what he claimed was the unauthorized use of his photo of Tupac on the shirts. Miller is seeking $150,000 for each presentation of his photos, claiming the two pictures were wholly “misappropriated” and that he was never contacted or notified about their use.
Aside from strictly legal concerns, the fiasco sheds light on the downsides of the seemingly uber-popular and profitable merch ventures that are dominating the fashion and music industries at the moment. If not properly managed, these collections can prove more costly — in terms of bad press and the bottom line — than anything else.
To Patent or Not to Patent
Patents are in fashion. According to a recent report from RWS Inovia, a New York-based foreign patent filing service provider, international patent filing is increasing with Brazil, China, India and Russia becoming hot spots for brands to file for patent protection. The report, entitled, “2017 Global Patent & IP Trends Indicator,” revealed that overall patent activity and international filing rates — including those by retail brands — rose in 2016 with more than 41 percent filing more than half of their patent applications overseas in 2016.
This comes as something of a surprise given that the Supreme Court’s unanimous decision in the highly anticipated Apple v. Samsung case late last year, which centered on how to measure damages in cases of design patent infringement, stands to potentially decrease the value of design patents, a tool for many large, established fashion brands.
The Apple v. Samsung case, which the Supreme Court sent back to the Federal Court to decide how to determine the appropriate basis for determining damages in any particular case, might turn out to be blow for patent holders, as going forward they can only recoup profits attributable to particular patent-protected components that were copied, as opposed to the product as a whole. (A patent-holder would obviously prefer an award of damages for the number of copied elements for the product as a whole, as opposed to on a more micro basis.)
Such a decision, however, has not deterred brands from filing patent applications, according to RWS Inovia’s findings. Given the lack of ideal and all-encompassing protections for garments and accessories provided by copyright and trademark law in the U.S., brands’ continued reliance on design patent protection is not all that surprising, particularly when it comes to the staple designs of the industry’s most well-known labels.
Julie Zerbo is founder of The Fashion Law.