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Have Human Rights triumphed over IP Rights?- 16/05/2011
The recent case of Plesner v Louis Vuitton demonstrates that a designer and retailer’s right to protection of its IP can, in certain circumstances, be subordinate to the artist’s right to free expression.
What Happened?
In 2007, Nadia Plesner, a Danish artist, began selling a work printed on T-shirts and posters, for the benefit of an organisation dedicated to providing aid in Darfur. Called “Simple Living”, the work depicts an African child holding in one hand a Chihuahua dressed in pink and in the other Louis Vuitton’s “Audra” handbag. Plesner’s stated intention was to illustrate that media interest in celebrities comes at the expense of interest in more sober issues such as the situation in Darfur. Vuitton claimed its registered design rights in the handbag were infringed and applied to the Parisian Court for an injunction, which was granted in March 2008. Following further discussions with Vuitton, Plesner stopped selling T-shirts and removed all depictions of “Simple Living” from her website in June 2008.
In 2010, Plesner completed the painting “Darfurnica”, a larger work which included, among other elements, a reproduction of “Simple Living”, complete with handbag. The painting was exhibited in Copenhagen in January 2011 and “Simple Living” was reproduced on invitations to the exhibition, as an “eye-catcher”. Vuitton successfully applied to the court of The Hague for an injunction against Plesner and the gallery concerned in respect of the infringements both in “Darfurnica” and “Simple Living”. Plesner challenged the court’s decision, arguing that it infringed her right to freedom of expression. As the case gained publicity, Vuitton softened its stance with regard to “Darfurnica” but maintained that the use of “Simple Living” infringed its rights.
What did the Court decide?
The Court of The Hague followed the approach set out by the European Court of Human Rights - that where fundamental rights are brought into conflict (in this case, the right of Vuitton to protection of its intellectual property against the right of Plesner to free expression) the Court should seek to strike a balance between the general interest and the interest of the parties involved. On consideration, the Court ruled that Plesner’s interest outweighed Vuitton’s because:
- artists enjoy considerable protection with regard to their artistic freedom of expression and “Simple Living” was to be regarded as a lawful statement of opinion in artistic form;
- Plesner’s use of the Vuitton design was functional (in that the handbag and Chihuahua motif was apposite to the opinion being stated) and proportional. In particular, Plesner’s use of the design was not free-riding on the reputation of Vuitton in a commercial sense;
- the use of “Simple Living” as an “eye-catcher” to establish extra attention for the exhibition, although containing a commercial element, was justified – the Court drew an analogy with newspapers, which, it argued, should not enjoy a lesser protection of their freedom of expression simply because they profited from their articles;
- the image did not damage Vuitton’s brand image by implying any link between Vuitton and the situation in Darfur; and
- the circumstance that Vuitton was a well-known company enjoying a considerable reputation meant that it must accept a greater degree of critical use than other rightholders.
What does this mean for designers and brand owners?
- Don’t panic - The balancing act performed by the Court will depend on the facts of each case. If Plesner’s intentions were less noble, or her use of the design less functional and proportional, or Louis Vuitton’s design less iconic, the decision would have been otherwise. It is however clear from the decision that the right to self-expression is capable of trumping the right to protection of property.
- Continue to protect your IP rights – This case is unusual and the facts of it are unlikely to appear before a Court again in the near future. As such, it is likely that the Court will continue to take a robust approach in favour of designers and brand owners, ensuring that their innovation and creativity is protected and not abused.
- Consider your IP litigation strategy when your designs are used for “good causes” - The decision particularly impacts on the best-known brands; the more iconic a logo, design or product is, the more associations it will have accumulated in the minds of the public – rendering it apt for invocation in any artistic or other expression. Brand owners may wish to carefully consider issues of freedom of expression before commencing litigation, both in assessing their chances of success and in considering the PR ramifications of being seen to interfere with a fundamental right.