Photos of pregnant Beyoncé taken in 2013 sparked an important lawsuit that stands to impact the workings of web sites that host user-generated content, such as Pinterest and Facebook.
Meanwhile, Alibaba has helped facilitate the seizure of $2.9 million worth of counterfeit cosmetics, but the question is whether that’s enough to help the Chinese e-commerce giant escape a position on the U.S. Trade Representative’s Special 301 report. And while copyright law is in flux in the U.S. following the highly watched cheerleader case at the Supreme Court, Enfants Riches Déprimés, Barneys New York and The RealReal have been slapped with a copyright infringement lawsuit.
Beyoncé Photo Suit Trudges Ahead
Beyoncé stands to impact a copyright-centric defense that proves critical to the businesses of web sites ranging from Pinterest and Etsy to Facebook and Reddit, among others. A new ruling in the case that paparazzi photo company Mavrix Photographs filed against web host LiveJournal is sending LiveJournal to trial for posting copyright-protected celebrity photos online — namely, photos of Beyoncé.
In the latest development, the U.S. Court of Appeals for the Ninth Circuit reversed the California District Court’s decision that LiveJournal — which hosts celebrity gossip forum Oh No They Didn’t! and reportedly makes $30,000 a day in ad revenue from that site — is not liable for copyright infringement for photos posted on Oh No They Didn’t! by its moderators.
The lower court must clarify whether Oh No They Didn’t!’s volunteer moderators should be considered “agents” of LiveJournal, and therefore, whether the site will be able to escape liability because of the Digital Millennium Copyright Act safe harbor for online publishers that post user-generated content. In order to disclaim copyright infringement liability for the moderators, LiveJournal must establish that the photographs were posted at the direction of the site’s user, that it lacked knowledge of the infringing photos and that it did not financially benefit from those photos.
The ruling will impact a huge array of web sites, namely those that host user-generated content, such as Pinterest, which filed an amicus brief in favor of LiveJournal in June 2015, arguing it should be able to utilize moderators to filter out content containing hate speech and other unfavorable elements without risking loss of the safe harbor defense. Practically speaking, if the court sides with Mavrix, platforms, such as LiveJournal will likely do away with moderators in order to avoid having them classified as “agent” and thereby, implicating the host site.
Alibaba: All Talk?
Alibaba is making headlines again in connection with counterfeit goods. This time, the fakes-laden site is said to have helped Chinese authorities to seize 20 million renminbi, or $2.9 million, worth of counterfeit cosmetics in connection with “one online store.” According to a statement from Alibaba, its “platform governance team used big data to unveil a web site [offering counterfeit] La Mer, Jo Malone, CK, SK-II and other premium cosmetic brands across China’s Jiangsu and Zhejiang provinces.”
Per Alibaba, Chinese authorities raided a warehouse in Nanjing, marking “the culmination of the latest cooperation between Alibaba and Chinese authorities to weed out not just sellers of fake products, but also to use big data to trace production back to its source and bring it to a halt.”
The bust comes amid a larger and very well-publicized push by Alibaba to crack down on counterfeit goods offered on its platforms. After repeatedly being named on the U.S.T.R.’s “Special 301” blacklist of countries — and specific platforms — that are most egregiously abusing the intellectual property rights of others on a worldwide basis, Alibaba filed suit against two of the millions of vendors on its various e-commerce platforms, launched its Big Data Anti-Counterfeiting Alliance with 20 brands, including Louis Vuitton, and called on Chinese authorities to fashion tougher laws and penalties on fake goods. All the while, it has documented its efforts by way of Alizila, the Alibaba-owned news-related site, priding itself for its dedication to intellectual property rights.
It is unclear to date just how effective these new efforts really are as a whole, and critics have certainly been skeptical of the authenticity of such efforts by Alibaba. One of the most telling signs will be whether the e-commerce giant is included in the 2017 Special 301 Report, which is expected to be released “on or about April 30,” according to the U.S.T.R.
Let the Copyright Lawsuits Begin
In light of the ruling in the Star Athletica v. Varsity Brands case, which has been considered a sizable win for the fashion industry, there will likely be a rise in copyright registrations for original arrangements and adornments on garments and accessories, as they are now protectable by law. There is also likely to be an uptick in copyright infringement lawsuits in connection therewith.
The lawsuit Puma filed against Forever 21 in March has already made use of the new standard fashioned by the Supreme Court in determining what elements are protectable, although it remains to be seen how the Southern District of New York court opts to apply that new test in the case at hand.
In the meantime, one thing that has been uniformly agreed upon as covered by copyright law is original prints and patterns depicted on garments. With that in mind, Enfants Riches Déprimés (“Enfants”), Barneys and The RealReal have been named in a copyright infringement lawsuit in connection with garments bearing a photo of legendary musician Lou Reed. According to the lawsuit, which was filed by photographer Mick Rock in the U.S. District Court for the Southern District of New York this month, Los Angeles-based brand Enfants created a wool sweater and a coat for its fall-winter 2016 collection with one of Rock’s original Lou Reed photos, which first appeared in Rock’s book, Mick Rock Exposed, in 2010.
According to Rock’s complaint, none of the defendants were either authorized to use or licensed the image, and as a result, he is seeking damages and injunctive relief. This is the latest development in the evolving state of copyright law in connection with fashion in the U.S.
Julie Zerbo is founder of The Fashion Law.