Earlier this year, Badger & Winters Group embarked on a gender equality in advertising initiative. As part of the campaign, the New York-based advertising agency released the “We Are #WomenNotObjects” video on YouTube, which calls attention to a number of big-name brands that Badger & Winters believe have been exploiting women in their ad campaigns. And troubled Los Angeles-based retailer, American Apparel, is not amused.
According to the agency, the focus and intention of the #WomenNotObjects public service video was “to draw attention to the widespread, harmful and discriminatory objectification of women in commercial advertising and to criticize specific examples of such exploitive advertisements.” These examples include ad campaigns from Tom Ford, Balmain, and American Apparel, amongst other brands, and a Harley Weir-lensed editorial for Self Service No.43, which are paired with a voiceover addressing the gross objectification of women in advertising.
On the heels of the release of the #WomenNotObjects video, which was made available on YouTube and various social media networks in January 2016, American Apparel threatened to file suit against Badger & Winters, which had “sought no permission [to use copyright-protected imagery] from any of the dozens of advertisers featured in the video.” Badger & Winters “concluded, on the advice of counsel, that such non-commercial uses, made solely for purposes of commentary and criticism, and copying no more than what was necessary to ‘conjure up’ the originals, were clearly protected ‘fair uses’ of those copyrighted works, not to mention a protected exercise of Badger & Winters’ freedom of expression under the First Amendment.”
Well, as of now, American Apparel has not filed suit in connection with the #WomenNotObjects campaign but Badger & Winters has. After the parties exchanged a number of letters and a phone call, and disagree as to whether Badger & Winters’ use of the American Apparel ad campaign image (pictured above) constitutes fair use (a defense to claims of copyright and trademark infringement), the ad agency filed suit, seeking an official court judgment (declaratory judgment) that its video does not infringe American Apparel’s intellectual property rights.
According to Badger & Winters’ complaint, which was filed late last week in the Southern District of New York, a federal court in Manhattan, American Apparel’s counsel wrote to them “alleging ‘violations of its intellectual property rights’ and demanded that Badger & Winters ‘immediately discontinue the public dissemination of American Apparel’s copyrighted work.’” Badger & Winters further claims that “while American Apparel said it was not asking Badger & Winters to suppress the entire video, its demand was that the 2 to 3 seconds in the video that included American Apparel’s ad be removed, blacked out or blurred so that it would no longer be visible or recognizable to any viewer.”
Badger & Winters has refused to comply with American Apparel’s request – holding that it is protected from claims of infringement in accordance with the doctrine of fair use, and has instead, filed the lawsuit at hand “to refute American Apparel’s assertions of intellectual property infringement and to clarify the rights of the parties.”
Of all of the brands whose images were featured in its video, Badger & Winters claims that American Apparel, which is “well-known for its exploitive ad campaigns, often featuring models in sexually-provocative poses” and “widely known for the sexually harassing and exploitive behavior of Mr. Charney, inside the workplace as well as outside,” is the only one to threaten litigation. According to Badger & Winters’ complaint: “It is both notable and puzzling, to say the least, that American Apparel would be the only advertiser to come forward with a claim of infringement – a claim that would inevitably draw further attention to its questionable style of advertising.”
As such, Badger & Winters is asking the court for “a declaration that publication of the #WomenNotObjects video, and its continued distribution and display by Badger & Winters, is protected by the fair use doctrine and does not infringe American Apparel’s copyright” and for “a declaration that Badger & Winters’ use of American Apparel’s name, as it appeared on its ad in the #WomenNotObjects video, is protected by the nominative fair use doctrine and does not infringe American Apparel’s trademark rights.”
More to come …