In 2013, Gianluca Vacchi posted his first video on YouTube. The then-46 year old private equity retiree – who was “tired of his business routine [and] decided to dedicate his life to music, dancing, and an opulent lifestyle” – wanted to depict his “unique” life and personality. In the 6 years that have followed, Vacchi says that in addition to becoming “a widely-known professional snooker player,” he has had “remarkable success as an international social media celebrity, influencer, fashionista, and disk jockey.”
More than merely amassing some 15 million followers on social media and landing the GQ-endowed title of “the coolest man on Instagram,” Vacchi – who still maintains the title of non-executive director of IMA, his family’s Bologna-based machinery and packaging empire – claims that he has single-handedly “managed to create a fundamentally new type of male character: an extravagant millionaire … in the ambience of luxury surrounded by, and dancing with, stunningly attractive young ladies and demonstrating his lavish lifestyle,” oftentimes “in exotic locations.”
This “distinctive character” – which Vacchi describes as “a mature gentleman in prime physical shape [with] gray hair and (usually) a gray beard, [who] is not shy demonstrating a heavily tattooed torso” – is a direct reflection of the now-52-year old’s own look and life. On any given day, he can be found jetting between beaches across the globe, lounging on yachts in the Mediterranean, or DJ’ing at clubs like LIV in Miami and Vibra in Ibiza, all of which he has depicted in “short videos, pictures, and musical clips” posted on social media, making him “famous” across the globe.
Vacchi claims that his “image of a successful daring business person who is capable of doing things his own way” has proven so “internationally recognized and commended” that he has managed become a “style icon, supermodel, and one of the most influential social media moguls.”
The character’s “eccentric persona” – which was “authored and created” by Vacchi – has also allegedly made him the subject of copycats.
According to the copyright infringement and false designation of origin lawsuit that Vacchi filed against E*Trade in a New York federal court in April, the publicly-traded financial services company ran afoul of the law by “attempting to convert the persona and character created by Vacchi for its own commercial purposes and financial gain” by way of not one but two television commercials that “simply a rip-off of a number of videos created and published by Vacchi over the years.”
Specifically, counsel for Vacchi argued in the complaint that “in or about mid-2017, E*Trade created, produced, and published a commercial containing a character that is essentially a clone of Vacchi.” That character, the lawsuit asserts, is pictured “dancing with women on a boat while DJ’ing: conduct that based upon numerous YouTube videos, photographs, and music videos created and published by Vacchi, has become synonymous with the image and persona created by Vacchi.” This initial commercial was subsequently followed by another E*Trade advertisement that also featured Vacchi’s character and his “not-so-typical lifestyle.”
In addition to depicting a character engaging in some of the same activities as Vacchi, the lawsuit asserted that the commercials “depict a male character stunningly identical” to Vacchi, “i.e., both are white males with an identical silver-colored hair, hair styles, and the styles of facial hair; both characters wear a pair of square-shaped sunglasses; both characters are depicted with their torso unclothed; [and] the nude parts of torso of the both characters are covered with various similar tattoos.”
The similarities continue, as “both characters are dancing; the dancing partner of both characters is a younger good-looking woman; and both characters are dancing in on a yacht demonstrating lavish lifestyle and luxury; both characters are dancing with their main partner: a beautiful younger woman in a swimming suit.”
Legally, the is problematic, according to the complaint, as Vacchi “never licensed or otherwise authorized [E*Trade] to copy, distribute, or publicly disseminate [his] likeness or [his] character, [his] videos, or photos, or to make derivative works based upon them,” thereby giving rise to claims of copyright infringement in connection with both the copying of the videos and the replication of his “unique” character, as original characters very well may be protected by copyright law in much the same way as original videos or images.
Vacchi’s counsel argued that “the resemblance was, in fact, so extreme that the internet users began associating the character in the infringing video with [Vacchi’s] character,” which is precisely why his counsel asserts that E*Trade’s commercial “amounts to a misappropriation of [Vacchi’s] celebrity persona,” as well as false association and unfair competition in violation of the Lanham Act.
As a result, Vacchi claimed that he has “suffered and continues to suffer severe damages, including but not limited to a loss of personal and professional reputation and goodwill, lost earnings, and lost potential earnings, all in a sum not less than $1,000,000.00.”
*The case is Gianluca Vacchi v. E*Trade Financial Corp., 1:19-cv-03505 (SDNY).