After taking quite a bit of inspiration from Kanye West’s Pablo tour merch earlier this year, Forever 21 is on the hook for copying another brand’s design that was copied from Kanye West’s tour merch. That’s right, Marta Freedman, the creator of Hot Girls Eating Pizza, a brand popular on Instagram founded, is calling out the Los Angeles-based fast fashion giant for copying her "I Feel Like Pizza" shirt, which she says is a "parody" of Kanye West's "I Feel Like Pablo" merch t-shirt.
According to Freedman, who took to her Instagram account to call out Forever 21 for copying, she is “not the first to parody Kanye’s Pablo shirts.” She says: “I did move forward after learning Kanye was in approval of 17-year-old Austin Butts making DIY reproductions earlier this year. I thought of designers and brands I really admire that are known for their parody designs—like Brian Lichtenberg and UNIF."
Freedman told Nylon that her t-shirt design is justifiable as it "was made as a nod to Kanye," while "Forever 21's shirt was made to make money.” She further held that she does not intend to pursue legal action against Forever 21 as she "doesn't think there's anything she can do.” She does, however, want to make consumers aware that "this is not okay."
As for whether Freedman’s shirts – which she is selling on Depop – actually qualify as a “parody” design is very much up for debate. What we do know is this: Parody and the defense of fair use are held to standards established by legislation and by various case law. For instance, in one famous case (Campbell v. Acuff-Rose Music, Inc.), the court held that parodic character refers to the extent to which the subsequent work (the alleged "parody") comments on the original work, and in order to be deemed a parody, a work should provide social benefit, “by shedding light on an earlier work, and, in the process, creating a new one.”
Further, as a form of fair use, parodies will also be considered alongside the following factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
With this in mind, Freedman’s automatic characterization of her designs as “parodies” is very likely doing her a big favor. Instead of labeling the tees as illegal (think: trademark infringement or trademark dilution), they are being labeled as parodies, and thus, we are assuming it protected under the doctrine of Fair Use, which may not be the case.
However, assuming that West could make a trademark case here (he does not have federal trademark registrations for any of the slogans on his t-shirts), federal courts in New York – where this case would likely be heard – may actually side with Freedman. While the Southern District of New York (“SDNY”), a federal court in Manhattan, has a bit of a history of veto-ing purported parodies, so to speak, a recent ruling bodes well for Freedman. Early this year, a SDNY court denied Louis Vuitton’s motion for summary judgment in a parody case. (You may recall that Louis Vuitton filed suit against canvas bag company, My Other Bag, in 2014, alleging that MOB created, marketed and sold designs that infringe an array of its trademarks and copyrights. The bags at issue were canvas bags with graphics of famous Louis Vuitton bags on them, along with the text, “My Other Bag...” MOB responded to the lawsuit by claiming parody).
The second bit of good news for Freedman: West likely does not care, and even if he did, he has enough bad press on any given day that this may not be worth the trouble. In fact, given the very limited scale of Freedman's operation, it would likely do more harm than good if West were to file suit against the little guy, Freedman.
With the initiation of legal action comes the very real threat of bad press, to which consumers are not immune. The sheer amount of negative press that West could potentially face as a result of filing suit must be measured against what it would actually gain from suing the one-woman operation known as Hot Girls Eating Pizza. It is this very reason that brands are forced to choose their legal battles carefully. It is also why Freedman will likely be in the clear in this case – parody or not.