Céline showed skateboard decks in its Spring/Summer 2011 ad campaign along with its Kanye West and Christine Centenera-popularized blouses. Shortly thereafter, Stop it Right Now blogger Jayne Min took the exact (or nearly exact) Céline prints, slapped them on skateboard decks and began offering them for sale. Min and one of her skateboards were subsequently featured in Vogue's September issue and in an array of other publications. So, we have to ask: Copyright infringement or fair use?
This is a tough call primarily because fair use, which is a defense to a claim of copyright infringement, is a tough ruling to predict. Fair use is most commonly decided on a case-by-case basis, and as a result, it can be difficult to hypothesize about. Regardless, the (hypothetical) case at hand is a prime example of the applicability of the defense in the world of fashion. So, we have to talk about it for just a moment.
In the U.S., copyright law provides very limited protection for clothing designs, as they are primarily utilitarian in nature. However, when an original print or pattern is embodied in a garment or an accessory, copyright law quite often applies via the category of Pictorial, Sculptural or Graphic Works. Because 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, assuming that they are original prints. Why does this matter? Well, it means that Min’s artistic expression here (the printed skateboards) very likely amount to copyright infringement, and the Paris-based design house could take legal action (assuming the copyrights at issue are federally registered). That is not really up for debate. What is questionable is whether Min would be able to claim fair use.
The four factors that judges consider when a party asserts the defense of fair use are:
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 Is it published or unpublished, etc.?);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?).
There are certain factors that, if established, can help in a fair use defense. For instance, if the artist (Min, in this case) can show that careful contextualizing has “transformed” the original work into a new and/or improved work, this will certainly tip the scale in her favor. A use is transformative (and thus, favored under the first fair use factor) if it is made for a new purpose distinct from the purpose of the original work. In terms of the extent of the use of the original work, this very much varies per case. In some instances, you can use the whole thing if that’s the right amount for your transformative purpose. Yet, in others, only a small amount may result in a denial of a fair use defense.
I would argue that a few things are rather detrimental to any case that Min could make for herself. First, her skateboards were created primarily for the purpose of selling them. She made them and posted them on her highly-visited website for sale. This suggests that they are primarily commercial in nature (see Factor #1). The skateboards are not artistic or educational in nature; these types of usages are often far preferred in terms of a fair use evaluation than something created primarily for a commercial purpose. Second, just how transformative are Min's skateboards of the original Céline prints? Not yet. Not only has Min used the exact or nearly exact prints that Céline utilized for its collection, she stayed with the skateboarding theme that is present in Céline's ad campaign. This doesn't exactly make for a strong argument of transformative use. Had Céline not used skateboards in its corresponding ad campaign, I think Min would have a much stronger argument in favor of transformativeness. There are additional arguments to be made against Min's use of the Céline prints, but I will leave you with these.
What do you think?