Italian “pajama dressing” brand For Restless Sleepers has been receiving rave reviews from Vogue as of late, with the fashion publication citing designer Francesca Ruffini’s “sumptuous prints” and the addition of “versatile separates infused with a flair for decadence” – to its initial offering of upscale pajama-inspired pieces – as central to the burgeoning success of the four-year old brand. Having landed stockists like Farfetch and Moda Operandi, and found fans in its “opulent and exotic” wares, For Restless Sleepers has been on the up-and-up. Now it is coming under fire. 

A celebrated Hong Kong-born, Los Angeles-based artist is calling foul on Ruffini’s burgeoning brand for allegedly jacking one of her prints and using it in one of its latest collections. In an Instagram post on Sunday, Victo Ngai says that she does “not recall giving consent to” For Restless Sleepers to use her art in its Resort 2020 collection, and points to an airy suit and silky mini-dress from the brand’s recent lookbook as examples of “shameless” intellectual property theft. 

In short, Ngai alleges that the print that appears on For Restless Sleepers’ garments is the direct result of a case of copy-and-paste. 

Given the similarity at issue (and it is, in fact, quite striking), Ngai’s side-by-side post is gaining a quite a bit of traction among Instagram users, with many urging the young artist to haul the fashion brand into court, presumably on copyright infringement grounds, as copyright law may protect original prints, including ones that appear on garments. 

As for whether this would be the “slam dunk” win for Ngai that many social media users are suggesting, that unfortunately does not seem to be the case, unless Ms. Ngai maintains a federally registered copyright for the specific print at issue. Unlike in the past, when having a copyright registration was not a prerequisite to filing a copyright infringement lawsuit, the law changed in March 2019 when the Supreme Court determined in the Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC case that a plaintiff must obtain registration of a copyright in a work before filing a lawsuit on the basis of infringement of that work.

Ngai’s work (left) & For Restless Sleepers’ garments (right)

Based on the Copyright Office’s current records, it does not appear as though Ngai – who landed on Forbes’ 30 Under 30 Arts & Style list in 2014 at age 26 and boasts a roster of big-name clients that range from the New York Times and Dreamworks to Apple and American Express – has registered the print, thereby, taking a potential copyright action off of the table, for now at least. (It is possible that she could file and receive a registration and sue after the fact).

However, just because Ngai does not have legal recourse, that does not mean she is entirely without options. In recent years, social media call-outs have become a widely-used remedy for brands that do not have a basis for litigation – either because of a lack of substantial similarity (the core inquiry in a copyright infringement matter) or because they fall short when it comes to statutory conditions, such as copyright registrations – and/or for brands that lack the funds to take formal legal action. 

It is worth noting, of course, that copyright call-outs on Instagram rarely produce to the same results as a successful court battle; for instance, it is relatively uncommon for these social media squabbles to lead to formal settlements between the parties that include monetary damages paid to the individual whose work has allegedly been infringed, as would follow from a finding of infringement in court. As professors Amy Adler and Jeanne Fromer state in their 2019 paper, “Taking Intellectual Property into Their Own Hands,” instead of providing remedies that mirror those available to successful plaintiffs in copyright cases, such “extralegal uses of shaming” that can be found on Instagram provide “a quick, cheap and reliable remedy with incomplete relief.” 

In short: comparing the remedies that can be derived from successful copyright litigation to those associated with even some of the most virally-spread copyright call-outs is a bit like comparing apples to oranges.

That is not to say that these efforts are ultimately devoid of any results, though. One of the key things to be gained from such a scenario is the strong consumer awareness/perception element that is often associated with these copycat call-outs. This is clearly demonstrated in the comments on Ngai’s post, many of which swear off For Restless Sleepers and its products, while others call on the Ruffini and her brand to make the situation right for Ngai. This goes to Adler and Fromer’s points that “although companies have always been sensitive to reputation, social media has changed the game, [which means that] individual customers now have the capacity to wage shaming campaigns that can bring a brand to its knees in a matter of hours,” or which have the capacity to blow over in a matter of hours given the break-neck pace of the media.

All the while, there is a often sense of positive brand awareness-building and of community building in connection with the alleged victim of the copying, and awhich could ultimately have a positive impact on his/her bottom line.

It is not yet clear which of those possibilities will play out here, but either way, the hypothetical case provides some noteworthy insights into the reality of the post-Fourth Estate copyright landscape and the alternative remedies available in the age of Instagram.

In a statement to TFL, Ruffini said, “I am mortified by what happened and truly had no idea the image belonged to Victo Ngai. I found it on a photographic archive of images, it looked very vintage to me and [so, I did not] investigate the origins further, and [for] this I’m both ashamed and sorry.” She further stated that “this accident must serve as a lesson both to me and my brand but also to other brands, and I will most certainly reach out to the artist to try and make up to my mistake, in a way that will make her feel comfortable with the situation and be constructive towards this mistake,” noting that she has already “withdrawn the pieces from my website as a sign of respect.”

The theme for the next blockbuster Metropolitan Museum of Art Costume Institute exhibition has been revealed. After honoring Alexander McQueen in a posthumous exhibition, comparing the works of Miuccia Prada and Elsa Schiaparelli, looking to Chinese fashion, and taking over various institutions in New York for a examination for Catholic costume, the Met says that it will take on … time.

As first reported by the New York Times on Thursday, next year’s big exhibition, which will debut in May, as heralded by the annual Met Gala – which raises some $15 million in a single night to fund the fashion and costume-specific department of the Met – will be entitled, “About Time: Fashion and Duration.” According to the Times’ Vanessa Friedman, this year’s theme is “inspired in part by the novels of Virginia Woolf and the theories of the early-20th-century French philosopher Henri Bergson, whose admittedly somewhat obscure but also important musings on time posited it as a constantly mutating stream rather than a series of discrete moments.”

“Fashion is indelibly connected to time,” Andrew Bolton, the curator in charge of the Costume Institute of the Metropolitan Museum of Art, told the Times. “It not only reflects and represents the spirit of the times, but it also changes and develops with the times.” The show – one that Friedman says “may be the most conceptually abstract blockbuster the Costume Institute has attempted, toggling between what Mr. Bolton calls the ‘objective’ time of the calendar and the ‘subjective’ time of creativity – will take the form of 160 pieces of women’s fashion created over the past 150 years.

So far, Bolton has given some ideas as to what attendees can except come next spring, saying that he wanted to “address minimalism in the 1990s and thought Jil Sander would be perfect,” and will work with British designer Georgina Godley to create a new piece inspired by her influential “Lumps and Bumps” collection. Bolton also referenced works of “John Galliano from his Dior days” and “iconic pieces of Helmut Lang.” Given that Louis Vuitton is underwriting the exhibition, it is safe to assume that garments and accessories from the brand will be given prime placement.

The Times notes that the show, itself, will be designed by Es Devlin, who was responsible for the sets for Beyoncé’s “Formation” tour, as well as many Royal Opera House productions.

In recent years, the annual Costume Institute show has routinely broken the famed New York museum’s attendance records, in many cases, prompting the museum to extend the closing dates. The museum revealed that for 2018, it saw an increase over the 7 million it reported for 2017. Burgeoning attendance was due, in large part,  the museum stated, “to the record-breaking attendance for the Costume Institute Heavenly Bodies: Fashion and the Catholic Imagination, which attracted 1,659,647 visitors.

The number of visitors that hurried up the steps of the Met to take in the Heavenly Bodies show, which was on show from May 10 to October 8, put an end to the long reign of the museum’s sweeping 1978 King Tutankhamun-focused “Treasures of Tutankhamun” exhibit, one that had held the title of most-visited.

Louis Vuitton reopened its refurbished flagship store in Florence in March 2019 to great fanfare from the fashion industry. The world’s largest luxury fashion brand made great play of the fact that, alongside all the apparel and accessories up for offer, the refurbished store – which is located in a famed Florentine palazzo –is replete with artworks, including those by Italian artists, such as Osvaldo Medici del Vascello and Massimo Listri. The brand has since looked to more modern artists, such as Alex Israel, Sam Falls, Urs Fischer, Nicholas Hlobo, Tschabalala Self and Jonas Wood, for a handbag collaboration.

The art world has a history of providing inspiration for designers out to produce new and/or timeless wares, and luxury fashion brands have long partnered with artists in much this same vein. As of 2019, it’s almost impossible to find a fashion house that is not using art to promote their brands – whether it is through window displays, advertisements, billboards, or in-store art exhibitions or by putting art on the catwalks and in the collections, themselves. Luxury fashion brands know that they need a point– or better yet, points – of differentiation if they want to enhance their images of exclusivity and charge higher prices for their products, and studies have suggested that an association with art allows commercial brands to be perceived as more luxurious.

With that in mind, luxury brands are moving directly in the art field, as demonstrated by the stream of art-centric collaborations that appear on runways each season and/or in their flagships across the globe. More than just using art for purely commercial purposes, they are also investing quite conspicuously in the cultural industry, as well. By way of foundations, as well as commission and residence platforms, brands like Salvatore FerragamoTrussardiHermes, and Ermenegildo Zegna, among others, are investing in art, and collecting valuable contemporary (sometimes modern) pieces. The likes of Prada and Louis Vuitton have gone one step further with their respective Fondazione Prada in Milan and Fondation Louis Vuitton in Paris, which may carry the names of fashion houses, but they are fully-fledged art galleries open to the public.

Prada’s private collection contains pieces by Jeff Koons and William N. Copley, to mention just two. The Miuccia Prada-led brand has also commissioned and produced pieces by artists, such as Anish Kapoor and Thomas Demand, while, pieces like “Nu bleu aux bas verts” by Henri Matisse and “Ladies and Gentlemen” by Andy Warhol are part of Fondation Louis Vuitton’s sweeping private collection, alongside “Inside the Horizon,” a site-specific work by Icelandic-Danish artist Olafur Eliasson on display at Fondation Louis Vuitton.

Not to be outdone, François Pinault, the majority shareholder and honorary chairman of the retail conglomerate Kering, has funded a nearly $170 million redevelopment of the Bourse de Commerce, the domed former commercial building located on Paris’ Rue de Viarmes, which – beginning in 2020 – will serve as the home for his personal collection of contemporary art. Consisting of about 5,000 works by artists, such as Jeff Koons, Cy Twombly, and Cindy Sherman, the collection’s impending new home will be “Paris’s second billionaire-funded art space after the Fondation Louis Vuitton, which was inaugurated in 2014 by Bernard Arnault, chairman and chief executive of the rival luxury-goods group LVMH Moët Hennessy Louis Vuitton,” the New York Times noted this spring.

Reflecting on the activity of some of luxury fashion’s most esteemed names, you could almost draw comparisons with the Medici family of renaissance Florence, a name that is among the most renowned art patrons in history and also a pioneering banking family and political dynasty. These luxury fashion houses and their shrewd leaders clearly understand the enormous power that art, and culture in general, can wield in a commercial and even political context.

All the while, it appears that many of these companies are moving their respective brand image from that of the ephemeral – producing merely seasonal clothing and accessories and interpreting style and trends – to a something altogether more permanent and important: that of cultural definers, something that could further bolster their bottom lines by association.

The question remains: are fashion’s art endeavors actually fulfilling any of art’s core functions? Art is a such a powerful tool for good. Art can help to create a sense of community, it can help lonely people find a purpose and a group to share their ideas with. Art can help teenagers understand what they are feeling. Art can be therapeutic for people with mental health problems and it can help people from diverse communities find common bonds. To what extent are these foundations actually doing this? And to what extent are they relying on art to bolster the value of their own names and thus, their products?

While these questions are very much up for debate, one thing is clear: they are using their commercial brand power to bring art to more people.

Alessia Grassi is a lecturer in marketing at the University of HuddersfieldEdits/additions courtesy of TFL

On one evening last November, musician Ryan Upchurch carried a couple of paintings into has backyard in Tennessee, propped them up against a some greenery and shot them repeatedly with an assault rifle. He posted a video of the incident to his Instagram account, and then proceeded have the mutilated paintings – one depicting himself and the other of Johnny Cash, on which he wrote “Fuck This dudes Paintings” – auctioned off to the public. It turns out, 28-year old Upchurch – who rose to fame on YouTube as part of the burgeoning country rap genre – had a bone to pick with the artist, Jacob Aaron LeVeille.

Florida-based LeVeille – who claims that his “unique paintings of country musicians have achieved growing acclaim among visual art and country music aficionados” – has since taken the beef to court. Filing suit in federal court in Jacksonville, Florida on Monday, LeVeille alleges that “Upchurch intentionally mutilated [his] works … for purposes of damaging [his] honor and reputation, and the reputation of [his] art,” thereby running afoul of a relatively obscure federal law called the Visual Artists Rights Act of 1990 (“VARA”).

Under VARA, certain artists – such as those behind single or limited edition paintings, drawings, prints, photographs, or sculptures – “moral rights” in their works. Practically speaking, VARA, which was the law at the center of the protracted 5Pointz graffiti case, enables artists to prevent the destruction of a work of art if it is of “recognized stature.” It also allows artists to control the alteration of their works, regardless of whether they have sold it.

 LeVeille’s mutilated paintings LeVeille’s mutilated paintings

The parties’ relationship didn’t always involve lawsuits and mutilated paintings. LeVeille claims that he initially met Upchurch at one of his concerts in 2016, and thereafter, the rapper purchased a number of his paintings, including the two that were “mutilated” in November.

While Upchurch paid for a number of the paintings he obtained from LeVeille upon delivery, the artist claims that Unchurch did not pay outright for the portraits of himself and Johnny Cash. In fact, LeVeille alleges that Unchurch did not pay at all, and “despite [his] repeated attempts to obtain payment or the return of his paintings,” LeVeille alleges that he “never received assurances [from Upchurch] that his works would be paid for or returned.”

“Beginning on or around November 8, 2018,” LeVeille asserts in his complaint that his quest to relieve payment for the work translated into a “dispute on social media [with Upchurch] over the payment for or return of the Cash and Upchurch portraits,” which ultimately culminated in the rapper firing “tens if not hundreds of rounds from a shotgun and an automatic assault rifle” at the two paintings and then handing them off to a Tennessee-based company called Cheatham County After Dark for auction.

As a result, LeVeille says that Upchurch has “intentionally harmed [his] honor, reputation, and growing status as a visual artist by publicly disseminating the defamatory video in which he mutilated the [portraits] and by subsequently displaying the mutilated portraits and distributing images of them publicly on social media, on the internet, and to Upchurch’s over 1 million social media followers on the internet.” Such “willful and malicious” conduct, the artist asserts, gives rise to a claim under VARA, and he is seeking actual damages, any profits that Upchurch made in connection with the “unlawful conduct,” and attorneys’ fees and costs.

*The case is Jacob Aaron Leveille v. Ryan Edward Upchurch professionally known as Upchurch, 3:19-cv-00908 (M.D. Fla.). 

FUCT may have won over the U.S. Supreme Court in June, but now the celebrated streetwear brand is at the center of an ugly copyright infringement lawsuit. Artist and illustrator Richard Louderback is calling foul on FUCT and its founder Erik Brunetti, as well as fellow streetwear brand-slash-erotica magazine Richardson and its founder Andrew Richardson, claiming that despite his “protests,” the defendants have engaged in “despicable conduct” by producing and selling clothing bearing unauthorized copies of his Jaws-inspired work called, “Maneater.”

According to the complaint that counsel for Los Angeles-based Louderback filed in a California federal court late last week, FUCT and Richardson announced by way of social media posts in June that they had collaborated on and would begin selling a familiar-looking capsule collection. While the collaborative t-shirts and sweatshirts, among other goods, make use of Louderback’s “Maneater” image, which he created in 1992, the defendants “intentionally omitted any credit to [Louderback].” Instead, they plainly co-opted the image in furtherance of “a cruel and unjust” scheme that “was, and continues to be, undertaken with oppression, fraud and malice,” the artist asserts.

Louderback – whose work has been “shown in museums, galleries, and art fairs around the world, including MOCA in Los Angeles, Klosterfeld Gallery in Berlin, Frieze London, and the Sydney Opera House” – claims that as soon as he got wind of the FUCT x Richardson collab and the unauthorized use of his work, his counsel “promptly sent cease and desist letters to the defendants on June 11, 2019.”

While Richardson initially agreed to refrain from selling the allegedly infringing wares, Louderback claims that “Brunetti and FUCT never even hesitated.” In contrast, the complaint asserts that Brunetti “responded, both in text messages to and a letter from [his] counsel to [Louderback’s] counsel, [and] arrogantly refused to cancel or even postpone the upcoming sale of the infringing goods.”

Two days later, on June 13, Louderback claims that the allegedly infringing goods were being offered for sale on FUCT’s website, and sold out by the end of the day. “Based in part on industry practice,” Louderback asserts, “the defendants held back a number of the infringing goods, to sell later in the secondary market,” the complaint notes.

The issue goes back further than this summer’s FUCT x Richardson collaboration, according to the complaint. Louderback claims that this is not the first time that FUCT has made “unauthorized” use of his work, and asserts that FUCT has been “using and taking credit for [his Maneater] artwork for decades, with great success and acclaim.”

 Louderback’s Maneater (left) & FUCT x Richardson tee (right) Louderback’s Maneater (left) & FUCT x Richardson tee (right)

It turns out, Louderback and Brunetti were allegedly in cahoots in the beginning. In the early 1990s, Louderback “licensed his Maneater artwork [to FUCT to use] on one run of tee shirts – with the clear understanding that the permission was only for this limited use,” David Erikson, counsel for Louderback exclusively told TFL. “No one, including Brunettti, would have thought my client was assigning the copyright [in the Maneater work] for unlimited use, and there is absolutely no paperwork or relationship that would support that idea.”

Yet, “over the years,” Erikson continues, “Brunetti has freely used the Maneater artwork, and a lot of my client’s other original artwork, without permission. He even led the world to believe that he, not Richard, created the artwork.”

When asked by TFL why Louderback did not take copyright infringement action sooner, since he asserts that it has been routinely occurring over a matter of two decades, Erikson stated that while his client “made his complaints known [to Brunetti], he lacked the resources to bring a lawsuit, as Brunetti knew.”

The situation becomes more complicated, according to the complaint, given that Brunetti, “emboldened by his recent trademark victory at the United States Supreme Court,” allegedly told Louderback that FUCT’s lawyer [John Sommer] “is so fearsome that legal action would be fruitless,” the complaint states. Nonetheless, Louderback says “in spite of such warnings,” he is filing suit.

“When friends showed FUCT’s latest infringement to my client, it was the last straw,” says Erikson. (Assuming that Louderback’s counsel can establish that this alleged infringement is distinct from past instances for which the 3 year statute of limitations for copyright infringement has run, it is also the first time since the Supreme Court’s March decision in Fourth Estate Public Benefit Corp. that Louderback can assert his rights via litigation, as he just received a copyright registration for his “Maneater” work in July, which is a prerequisite to filing suit).

With such “intentional, deliberate, willful, wanton [conduct in mind],” and the defendants’ alleged “intention of injuring [Louderback], and depriving [him] of his legal rights,” Louderback sets forth claims of copyright infringement and is seeking “all damages, including damages that [he] has sustained, or will sustain, as a result of the acts,” as well as injunctive relief, which would immediately and permanently bar the defendants from making, marketing, and selling the allegedly infringing wares.

Counsel for FUCT John Sommer and a rep for Richardson did not respond to TFL’s requests for comment. TFL will update this post if they provide a response, and when any filings on the merits are made by counsel for the defendants.

*The case is Richard Louderback v. Erik Brunetti, FUCT, Andrew Richardson, and Beatrix Felix LLC, 2:19-cv-06752 (C.D.Cal).