Fair Use? It’S Inwards The Bag

On Dec 22, 2016, the Second Circuit affirmed the Jan 6, 2016 order from Judge Furman of the Southern District of New York (SDNY), which had constitute that the exercise of the Louis Vuitton logo in addition to the representation of the Louis Vuitton bags on cloth totes was fair use. The maker of the tote, My Other Bag (MOB), was represented past times David Korzenik, my old Entertainment Law professor at Cardozo School of Law, who encouraged all his students to write in addition to release in addition to showtime gave me the thought to write nigh law.

Louis Vuitton famously designs in addition to sells luxury bags carrying its LV logo. These bags are oft seen inward showtime degree aerodrome lounges all to a greater extent than or less the world, or in addition to therefore I’ve been told, only is it wise to exercise them equally gym bags or shopping bags? The founder of MOB, Tara Martin, wondered, similar all of us, if i should deport one’s Louis Vuitton bucket purse to larn grocery shopping, considering, later all, that i Louis Vuitton purse was originally designed to deport champagne bottles (the French are in addition to therefore clever, non?)

Ms. Martin’s response was to create cloth totes amongst i side representing a somewhat cartoonish rendition of a famous luxury bag, such equally Hermès’ Kelly bag, Chanel’s matelassé bag, in addition to several models of Louis Vuitton bags, acre the other side read “My Other Bag is…”This phrase is inspired past times the “My other auto is a Jaguar/a Mercedes…” bumper stickers which were in i lawsuit ubiquitous on automobiles of a somewhat less expensive nature. The Louis Vuitton ‘LV’ logo are replaced on the MOB totes past times the initials MOB in addition to are sold from $35 to $55.

Source: http://www.myotherbag.com

Louis Vuitton considered this exercise to hold upwards infringing in addition to filed a conform against MOB, claiming trademark dilution, trademark infringement, in addition to copyright infringement. MOB moved for summary judgment, which was granted on all points past times Judge Furman from the SDNY.

As this spider web log concentrates on copyright, I volition exclusively address this item number inward this illustration (I wrote nigh the trademark issues of the illustration here). Judge Furman had examined all the four fair exercise factors in addition to constitute the exercise of the copyrightable elements of Louis Vuitton’s prints to hold upwards fair use.

Judge Furman from the SDNY: it is a parody in addition to it is fair exercise

The showtime factor, the role in addition to grapheme of the use, was inward favor of MOB, fifty-fifty though the exercise is commercial, because the exercise is a parody, which, “even when done for commercial gain, tin strength out hold upwards fair use” (at 445). Judge Furman constitute that that the minute factor, the nature of the copyrighted work, was non of much help, equally a parody almost invariably re-create publicly known, expressive works. The 3rd factor, the amount in addition to substantiality of the subdivision used inward relation to the copyrighted travel equally a whole, was constitute past times Judge Furman to hold upwards reasonable inward relation to the role of the use, because “MOB's totes must successfully conjure Louis Vuitton's handbags inward companionship to brand sense”(at 445).

As for the quaternary factor, the resultant of the exercise upon the potential market, Judge Furman had constitute that fifty-fifty though

“MOB's totes are, inward an abstract sense, inward the same marketplace position equally Louis Vuitton's handbags, its totes practise non "serve[] equally a marketplace position replacement for" Louis Vuitton's bags inward a means that would brand "it probable that cognizable marketplace position impairment to [Louis Vuitton] volition occur… [as] whatsoever reasonable observer would grasp that the whole cry for of MOB's invocation of the "my other car..." trope is to communicate that MOB's totes are non replacements for Louis Vuitton's designer handbags. See Cariou v. Prince, 714 F.3d 694, 707 (2d Cir.2013) ("What is critical [in evaluating a fair exercise defense] is how the travel inward enquiry appears to the reasonable observer.") (at 445).

The Second Circuit: the exercise is transformative

The Second Circuit reviewed the summary judgment de novo and affirmed both the honour of summary judgment to MOB on Louis Vuitton’s trademark infringement claim, trademark dilution claim, in addition to copyright infringement claim.

The Second Circuit constitute that MOB's exercise of Louis Vuitton’s designs was a parody which “produces a “new appear [and] message” that constitutes transformative use…. Like the district court, nosotros conclude that the remaining fair-use factors either weigh inward MOB's favor or are irrelevant, come across Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F. Supp. 3d at 444–45, in addition to LV's arguments to the opposite largely repeat or echo those nosotros convey already rejected.”

This illustration signals that the Second Circuit is continuing to affirm the importance for a courtroom to assess whether a item exercise is transformative when deciding whether a item exercise is fair exercise or not.