Underground artist Wil Fry (of Ian Conor-printed and "Givenchy" Nets jersey Internet fame) released another piece from his growing collection of works: the "Collab" jacket. Upon its release this summer, Fry told us there's more to the project than meets the eye; it is, in fact, a "mock collaboration." This brings us to the position we almost always end up in when analyzing Fry's work: Copyright and/or trademark infringement or not?
Some of Fry's works that proceeded this one, namely, the Givenchy Nets Jersey and the Expensive tee, were interesting examples of potential copyright and trademark infringement, which may or may not be excused so-to-speak by the affirmative defense of fair use based on parody. Put very simply, if a new work (such as Fry's Collab jacket) copies the original work of another (like the image from Proenza Schouler's ad campaign starring Julia Nobis) without authorization to do so, it infringes the copyrights in the latter. However, in the U.S., if the subsequent work (Fry's jacket, in this case) can be established as a parody, commentary or satirical work, that status allows the creator to dodge liability for copyright and/or trademark infringement (but because fair use is a defense to copyright and/or trademark infringement, it may only be claimed once a lawsuit has been filed).
So, what do we have here?
Based on the popularity of his previous works, Fry's jacket, which is not up for sale yet, is sure to be an in-demand item. It is also quite apparent that Dior, Proenza Schouler, Celine, Marc Jacobs, and any other design house whose original ad campaigns or trademarks appear on Fry's jacket likely have a trademark and/or copyright infringement claim here. However, it seems that Fry could be off-the-hook for at least trademark infringement, as the likelihood of confusion is arguably lessened given the fact that he has targeted multiple design houses and not just one. As a result, I think it would be clear to the average consumer that the jacket was not designed or endorsed by Dior, Proenza Schouler, Celine, Marc Jacobs, etc. As for copyright infringement: Well, that one might not be in Fry's favor.
It is far more difficult to determine if Fry has a successful defense in claiming fair use. For parody (and fair use in general), it is notoriously difficult to predict how a court would rule because it is such a fact-specific determination. However, cases dealing with this issue consistently look to several factors, including: (1) The purpose/character of the use (What was the main purpose that motivated the artist (Fry in this case) to create and release the work? For instance, is it commercial or not?); (2) The nature of the work (Is it a fiction or non-fiction work? Is it published or unpublished? Etc.); (3) How much of the original work is embodied in the subsequent work; and (4) Market harm (How does the subsequent work affect the market for the original work?).
There are certain factors that, if established, can help in a fair use defense. For instance, if the artist can show that careful contextualizing has "transformed" the original work into a new and/or improved work. A use is transformative (and thus, favored under the first fair use factor) if it is made for a new purpose distinct from the purpose of the original work. In terms of the extent of the use of the original work, this very much varies per case. In some instances, you can use the whole thing if that’s the right amount for your transformative purpose. Yet, in others, only a small amount may result in a denial of a fair use defense.
Whether Fry's skepticism of some high fashion collaborations is apparent in this jacket, and whether it amounts to fair use, as opposed to plain old infringement, is worthy of discussion. What do you think?