Amidst the Marc Jacobs - Kidult drama, we came upon an interesting website, which belongs to "artist" Wil Fry. You may recall that Fry offered a $35 version of the t-shirt MJ started selling right after the graffiti incident. The FRY tee was actually just a picture of MJ's tee on a white tee. Turns out, this was not Fry's first time selling such a shirt. Currently for sale on Fry's site (for the second time around because the first batch sold out) is a tee on tee from the Givenchy Spring/Spring 2012 menswear collection. So, we want to know: is Fry's t-shirt on a t-shirt tactic legal?
Taking the Givenchy example into account, it seems like the answer would be: no (assuming that Givenchy has copyrighted its print). Hypothetically, Givenchy could copyright the print on its Spring 2012 Birds of Paradise t-shirt as a Pictorial, Sculptural or Graphic work (PSG). This category includes two-dimensional and three-dimensional works of fine, graphic, and applied art, and allows for copyright protection to extend to useful articles, such as clothing. (This is an exception to copyright law, which is a sect of law that largely does not protect useful articles).
In order for a work to qualify as a PSG worthy of copyright protection, several elements must be met. (1) The work must be a PSG - it must be a 2D or 3D work of fine, graphic, or applied art, such as photos, prints, etc. (2) The item must be inherently useful - an article of clothing, a car, a lamp, etc. (3) There must be some degree of separability between the artistic element at issue and the useful function of the item. So, for instance, can the t-shirt exist without the design on it? If so, there is separability. (4) Lastly, the classic element of originality must be met, the level of which depends on the court and its case law. But basically, some degree of originality must exist.
This seems like a pretty straight forward analysis for the Givenchy t-shirt. (1) The design on the Givenchy shirt would be considered a work of visual art as long as it is an original print. (2) The item at issue, the t-shirt itself, is inherently utilitarian as it is an article of clothing. (3) Separability definitely exists. Courts have held that designs on t-shirts are distinguishable from the t-shirts themselves. (4) Lastly, assuming the Birds of Paradise design is original to Givenchy, the house would be entitled to copyright protection and thus, could sue FRY for using the design without authorization.
This does not take the various arguments that Wil Fry has on his side into account, but we'll save those for another day. More to come ...