When I think of Digital Millennium Copyright Act (DMCA) takedown notices, I think of illegally reproduced movies and pirated music. However, apparently Michael Kors should come to mind, as well. The NYC-based "affordable luxury" brand has been busy policing its intellectual property beyond the classic trademark cease and desist letters and the lawsuits routinely filed against a handful of online sellers of counterfeits. Turns out, Kors' legal team is not only targeting owners of infringing domains, it is targeting individuals who violate its copyrights by posting photos to social media, as well. (Yes, posting an image from an ad campaign or lookbook to your Twitter timeline is copyright infringement, albeit not an often policed form of infringement. A copyright owner has the exclusive right to reproduce or to authorize others to reproduce its work, and when you use another's copyrighted work without the authorization to do so, that's a violation of their right. And the fact that the image is already on Tumblr or The Fashion Spot is not material).
One recent example of Kors' copyright crackdown involves a non-famous Twitter account (in fact, this user has less than 3,000 followers, is not affiliated with any major media outlets, etc.), which posted a tweet including a photo from Kors' Fall/Winter 2014 ad campaign, along with some general commentary on the campaign. The tweet was subsequently deleted by the social media platform, and the Twitter user was notified via email that her/her tweet was removed as a result of a DMCA notice filed by Michael Kors' Legal and Brand Protection Manager. The ad campaign (pictured below), which was photographed by Mario Testino and stars Karmen Pedaru and Benjamin Eidem, began making its rounds on the web early last week with the Fashionisto, among other sites, providing "previews" of it. The tweet at issue was posted early this week.
This poses some interesting issues. Namely: It sheds light on the fact that the Michael Kors brand will go to great lengths to protect its IP, an important endeavor. It was pretty noteworthy when Louis Vuitton began pursuing legal action against individual sellers of counterfeit goods on iOffer, a San Francisco-based online trading community, not unlike eBay, that consists almost entirely of China-based sellers hawking fake designer goods. Instead of filing suit against the site as a whole, Louis Vuitton named individual users in its lawsuit, a relative first. In the past we have seen quite a few online market place lawsuits, but designer brands have targeted the online marketplace sites in the past, such as Tiffany & Co. v. eBay, and not individual sellers. So, targeting individual social media users who are posting images? That's even more interesting.
This move on Kors' behalf, while absolutely within its legal rights, as laid out by the Copyright Act and the DMCA, seems extremely impractical. However, here is what sense I can make of it … Kors is trying to maintain the exclusivity associated with his copyrights. Even though the Fall/Winter 2014 campaign will be released in magazines, on billboards, in stores, on blogs, etc., its copyright over the images withstands and Kors wants to be able to authorize (or better yet, not authorize) the use of its images. This, however, is difficult given therise of social media, particularly Pinterest and Tumblr, and the vast proliferation of image sharing.
In lieu of sending a million emails (maybe more) and/or filing a million (or more) DCMA takedown forms, Kors' legal team is trying to send a message by creating a chilling effect. If they send a handful of DMCA takedown notices to Twitter or Tumblr or Pinterest in connection with the unauthorized use of its images on these sites, those images will be removed and those few account holders will serve as examples to others. They will tweet about it. They will share this info (or so Kors hopes) and others will likely hesitate before posting Michael Kors images to social media for fear that they will get a legal email. Is Michael Kors' legal team policing every unauthorized use of his ad campaign images? No way. The company simply does not have the resources to do that. Yes, it is a billion dollar company but policing all of the unauthorized uses of its images on social media would require the efforts of many people and many, many hours nearly every day for the foreseeable future. In this way, I find it hard to believe that any more than a handful of people will be on the receiving end of a DMCA take down notice from Twitter or from Kors itself.
Much like the Louis Vuitton case, even if Kors did, in fact, decide to sue these individual Twitter users for copyright infringement, the resulting lawsuits would arguably be less than fruitful. If you've ever signed up for a social media account, you know that the information that you must provide about yourself and your actual identity is minimal. As a result, it would potentially be very difficult for the Kors team to locate each of these largely unnamed defendants in order to force them to show up in court and face their punishment. As for whether these defendants actually have any money to pay for damages is another issue entirely. So, essentially, the lawsuits would be pointless, and a huge waste of time for Kors' legal team. The brand's team would likely be much better off filing lawsuits against online sellers of counterfeits, because then, at least, if the defendants don't show up in court, they will be awarded a default judgment and ownership of the domain names at issue, as well as any money in the defendant's PayPal accounts.
Now, I will preempt at least one of the questions which I will undoubtedly receive: What about "fair use"? Isn't posting images to Twitter or Tumblr, etc. fair use? Well … fair use is an important limitation to the rights afforded to a copyright holder. It essentially allows for the limited use of copyrighted material without having to acquire permission from the copyright holder; common forms include commentary, criticism, parody, news reporting, research, etc. However, in order to establish that your use of an image, for instance, is, in fact, fair use, you have to meet the factors set out in the Copyright Act (section 107 for the legally-minded). These factors include: 1) The purpose and character of the use, including whether such use is commercial in 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.
The outcome of a fair use defense is notoriously difficult to predict, and so, I won't go there, but I will say this: Fair use isn't a get out of jail free card, so to speak. It is a defense to copyright infringement. This means that you can only claim it in response to allegations of copyright infringement - aka once you've been sued.
But, I digress. Tell me what you think of Kors' tactics in the comments section below …