Image: Gianluca Vacchi

Five months ago, Instagram’s “coolest man” Gianluca Vacchi filed a copyright infringement and false designation of origin lawsuit against E*Trade in a New York federal court. In his April 2019 complaint, 52-year old Vacchi – a retired investor and the current non-executive director of IMA, his family’s Bologna-based machinery and packaging empire – alleged that E*Trade ran afoul of the law by copying “the persona and character [he] created for its own commercial purposes and financial gain” by way of not one but two television commercials that “simply rip-off of a number of videos created and published by Vacchi over the years.”

Fast forward to late last week and in an opinion and order dated September 13, Judge Denise Cote of the U.S. District Court for the Southern District of New York granted publicly-traded financial services company E*Trade’s motion to dismiss, bringing the case in its entirely to an end, unless Vacchi opts to appeal.

According to Judge Cote’s decision, “Vacchi alleges that his media postings,” which have garnered him more than 13 million social media followers and the GQ-given title of the “coolest man on Instagram,” feature “an original character of [his] own creation” – a “fundamentally new type of male character: an extravagant millionaire … [almost exclusively depicted] in the ambience of luxury, surrounded by, and dancing with, stunningly attractive young ladies and demonstrating his lavish lifestyle.”

Vacchi describes the character 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,” who appears in an array of videos published by Vacchi, five of which have been registered with the U.S. Copyright Office. While the character may “be played by Vacchi, use Vacchi’s name, and [have] traits based on Vacchi’s personality,” 52-year old Vacchi asserts that he “authored and created” the character, and thus, is entitled to copyright protection for it, as well as for the five registered videos in which the character appears.

By replicating elements of his videos, themselves, including the main character, Vacchi argued in his April complaint that E*Trade’s infringed his rights as the copyright holder. The court, however, was not persuaded.

As Judge Cote set out in her opinion last week, “To establish wrongful copying,” as required for a successful copyright infringement claim, “a plaintiff must show a ‘substantial similarity’ between the defendant’s work and protectible elements of his own work,” with such similarity being gauged from the perspective of the “ordinary observer.”

In terms of the videos, E*Trade argued that Vacchi’s claim for infringement “must be dismissed because [his videos] are not substantially similar to [its] commercials,” and according to Judge Cote, E*Trade “is correct.” For one thing, the Judge found that Vacchi’s five registered videos “focus on a character with no similarities to the main subject of [E*Trade’s] ‘Yacht Life’ commercial, which is “the dumbest guy in high school,” i.e., a young man.

“To the extent that similarities exist between E*Trade’s ‘Hard Work’ [commercial] and [Vacchi’s] registered videos, these elements are not protectible,” the Judge states. The elements at play, such as “an older man dancing with a younger woman on a boat, as music plays in the background,” she asserts, are little more than standard themes, and thus, “are not entitled to protection under copyright law.”

More than that, though, Judge Cote states that even if these elements were protectable, “the music, the boats, the dancing, and the cinematography [in E*Trade’s ‘Hard Life’ commercial] differ substantially from those in [Vacchi’s] registered videos,” and would not likely be considered examples of copyright infringement.

As for Vacchi’s argument that the E*Trade commercials infringe his rights as the copyright holder in the character depicted in the registered videos, the court again sides with E*Trade, asserting that while “the Second Circuit recognizes copyright protection for characters,” such protection only exists when the characters are “embodied in original works of authorship that are themselves protected by the law of copyright,” and since the court found that Vacchi’s videos consist largely of standard, unprotectable elements, that is not the case here.

Even if the videos were protected, that would not necessarily prove helpful for proving infringement of Vacchi’s character, as Judge Cote says that the level of similarity between the two characters at play here is not sufficient. Both of the men, she notes, “have neatly trimmed, salt-and-pepper beards, square-shaped glasses, and exposed torsos with tattoos.  They also both enjoy dancing with younger women.” However, that is “where the similarities end.”

To be exact, the Judge states that “the E*Trade character lacks many of the most distinctive physical attributes of Vacchi’s character.” For instance, the E*Trade character “is not fit, and his tattoos do not resemble those of Vacchi’s character.” Beyond that, “He does not roll up the leg of his shorts [as Vacchi’s character does], and instead, wears trousers with suspenders.” Still yet, “His beard does not end in a knot [like Vacchi’s], and he does not wear the ankle bracelet or wrist cuffs seen on the character of Vacchi.”

With such differences between the Vacchi character and the E*Trade character in mind, the court failed to find substantial similarity between them “as they appear in [Vacchi’s] registered videos and the E*Trade commercials,” and tossed aside the character copyright infringement claim.

Finally, in terms of the false endorsement claim made by Vacchi, in which he asserts that E*Trade “used his likeness or persona to falsely imply that [he] or [his] character endorsed E*Trade,” this also fails, according to the court because Vacchi has been unable to “establish substantial similarity,” and thus, is unlikely to have a basis for asserting a likelihood of consumer as required for a false endorsement claim.

As such, Judge Cote dismissed the case in its entirely.

*The case is Gianluca Vacchi v. E*Trade Financial Corp., 1:19-cv-03505 (SDNY).