“Skating” on the Edge of the Law

You’ve heard us speak to copyright issues in regards to the product designs of different fashion labels. However, what happens when a well-known blogger copies the designs of various retail items, and slaps them on a skateboard? Is there a copyright issue at hand?

This is exactly what happened between Jayne Min and Céline not long after the high fashion brand showcased its newest Spring/Summer items, using skateboards as props within the shoot. The photo on the top showcases Céline’s shoot, with the photo on the bottom showing the skateboards that Min decided to produce and sell thereafter.

Screen Shot 2017-04-28 at 6.11.54 PM

Screen Shot 2017-04-28 at 6.12.03 PM

We know what you must be thinking, “But it’s a skateboard? Why does Céline even care!” Sure, the skateboards may not divert revenues from Céline to Min, as the companies most probably cater to different target markets with varying needs and wants. However, the design is, itself, a form of intellectual property.

Although the law provides limited protection for clothing designs, when an original print or pattern is embodied in a garment or an accessory, copyright law often applies via the category of pictorial, graphic or sculptural works. In order for this classification to apply, however, there must be a separability between the blouses and the designs on them. Since Céline’s blouses can exist without the prints on them (aka the prints are not functionally required), the separability requirement is met and the prints themselves are worthy of copyright protection.

However, the real question here is whether Min can utilize the defence of fair use, which is defined through four common factors:

  1. The purpose and character of the use (What was the main purpose that motivated the artist to create and release the work? Is it primarily commercial or not? Has the material has been used to help create something new or merely copied verbatim into another work?) – This factor is important, probably the most important, as a 1994 Supreme Court case emphasized this first factor as being a primary indicator of fair use.
  2. The nature of the copyrighted work (For example, is it fiction or non-fiction? Is it published or unpublished, etc.?);
  3. The amount and substantiality of the portion taken, and
  4. The effect of the use upon the potential market (How does the subsequent work affect the market for the original work?).

It’s clear that Min did in fact intend to profit off of the ever-so-chic skateboards, with practically the entire design copied onto the top. Further, the fact that Céline’s original photos included skateboards alludes to the fact that Min never actually had the idea of creating “high-end skateboards,” but rather was influenced by the fashion brand. Min would have probably had a better argument had this not been the case. Regardless, Min’s ability to successfully utilize the defence of fair use is unlikely.

What do you think? Will Min be able to defend herself in court and continue selling these fashionable skateboards? Or does Céline’s copyright infringement outweigh these interests?

Talk about “skating” on the edge of the law!

Information regarding the four factors for fair use is derived from The Fashion Law.

As with all Unprecedentedly Chic posts, this information is to be used generally, and is not intended to be legal advice. 


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