Just as Hedi Slimane’s first standalone menswear collection for Celine – complete with his well-established signature suiting (paired with suuuuper skinny ties), leather moto jackets, hints of sure-to-be-very-pricey animal prints and flannels, argyle sweaters, and a smattering of denim – was trotted down the runway in Paris, the brand’s social media staff was busy churning out black-and-white Instagram posts. One image, in particular, depicts Zach Choy, the young singer and drummer for Crack Cloud.
Choy – and the rest of the Canadian mixed media collective – composed the soundtrack for Slimane’s menswear show on Sunday, and so, his shirtless image, shot by Hedi Slimane, of course, found its way on the brand’s Instagram account, shaved head, skinny gold chain, tattoos, and all. One tattoo – a black-letter phrase that reads “Laughing At The System” – is particularly hard to miss.
Wei Huang is one of the many social media users that found the tattoo – and the image, itself – to be quite striking. However, upon first seeing the Celine ad, the Australian type designer was not merely amused by the latest work by Slimane, who put forth a marked similar aesthetic in his predecessor position at the helm of Saint Laurent. No, Huang has a very specific connection with that tattoo: he designed it, albeit indirectly.
To be exact, Huang created the 2017 sleeve for Australian post-punk band Total Control’s Laughing at the System album, the back of which is adorned with the words “Laughing at the System” in the same – exact – bold black lettering as Choy’s tattoo.
When Huang developed the artwork for the album – which he describes as “a contemporary take on blackletter using an idiosyncratic logic not bound by one particular historical model” and as a result of working “within the logic of thick and thin strokes using hard straight lines—restricted to mostly starting, running, and ending the strokes only on 0-degree, 45-degree, or 90-degree angles” – he certainly did not anticipate that one day he would see it in a Celine ad.
Yet, that is precisely what happened on Sunday evening when Huang saw the Celine image. He then wondered aloud on social media whether the tattoo was, in fact, real.
Considering that none of the parties at hand had collaborated on the Total Control album artwork, Choy’s tattoo, or the Celine campaign, a question of legality comes to mind, and the legality of this situation is, in fact, interesting.
In the U.S. and Australia, it is well-established that neither short phrases nor the artistic design of a typeface are subject to copyright law protections. With typefaces in mind, this means that creators cannot go after those who recreate the characteristics of a type style on copyright infringement grounds. But that is not necessarily what is going on here.
Christopher Sprigman, an intellectual property professor at New York University Law, says that Huang’s work may be more aptly characterized as a “word illustration” than as a typeface, the latter of which he defines as a “regularized set of letter forms used to set text in.” That distinction is significant, as unlike short phrases and typefaces, word illustrations – if original – canbe protected by copyright law.
The level of copyright protection afforded to Huang here (or to Total Control, if Huang assigned his rights in the illustration to the band as part of his contract with them) may very well be thin. The Copyright Office has held that typefaces, on their own, “are building blocks of expression that are used to create works of authorship” and the granting of exclusive rights in these would serve to grant a monopoly to the stylization of letters of the alphabet, something the government goes not want to do.
Nonetheless, Huang’s illustration has been “copied precisely” onto Choy’s skin, per Sprigman. “Point for point.” And so, even without a truly sweeping amount of copyright protection at play, a (hypothetical) copyright infringement claim is borne, since the holder of a copyright has the exclusive right to recreate the creative work, to display it (in a commercial capacity), and to create new works based on it.
But there is more intriguing at play here than the crafting of a copyright infringement claim against Choy as the direct infringer (for displaying the tattoo in a commercial capacity, either on stage or on a Celine ad) and Celine, as a potential contributing infringer (assuming that the brand had knowledge of the infringement). Even more compelling are the potential remedies that Huang and/or Total Control might be able to achieve in connection with such infringement.
In copyright infringement cases, a common non-monetary remedy sees the court order the infringer to destroy the infringing article or articles. That would – obviously – be problematic in the (hypothetical) case at hand. It would be a cold day in hell before a court would require Choy to submit to laser tattoo removal in connection with a finding of copyright infringement. Similarly, requiring the young musician to “put on a shirt” is also likely out of the question, as such a court order would, again, “stand in the way of [Choy’s] personal autonomy,” according to Sprigman.
Such remedies, ones that “require people to get tattoos removed, or cover them, are a significant intrusion into personal freedom,” he says. In terms of policy – and practicality, “Vindicating copyright rights at this level of expense simply isn’t worth it.”
Monetary remedies – especially in lieu of a copyright registration-induced order for statutory damages – could also prove a complicated avenue. Actual damages, whatever those may be, and a disgorgement of all profits earned by the defendants as a result of the display of the tattoo, fro instance, could be on the table. Sprigman suggests that “the [monetary] value of a license [from Huang or Total Control to Choy in exchange for the right to display the tattoo]” might be one of the metrics for gauging monetary damages. The “increment of Celine’s goodwill that was built as a result of this ad” is another.
With such legal specificities, it is difficult not to wonder whether such an inevitably complex and potentially difficult lawsuit would be worth its time in court. And to be frank, neither Huang nor the Total Control band members seem eager to jump into the ring with Celine, which is likely a smart move given the strength of LVMH’s legal prowess.
As for allowable uses of his designs, Huang wants to make one thing clear, “You can freely tattoo anything I make.” Including those tattoos in an ad campaign for a world-famous luxury goods brands sans any prior authorization? That might be a step too far.