I am not really into copyright law issues. I am however into freedom of expression and copyright gets into your way ALL the time. I do not have anything against copyright as such. Once upon a time copyright used to make sense: protecting to a certain extent creators' rights AND serving creators' interests. At the end of the day creators, authors, artists have to make a living somehow. I am not sure that copyright makes much sense nowadays though. When it comes to authors/academics they publish most of their work into research articles for which they get nothing whereas the publisher/journal makes a fortune out of it selling it at ridiculously high prices. Not to mention that knowledge remains confined to a certain elite who can actually afford the respective individual or institutional subscriptions. I do not think that copyright serves creativity anymore. There is an extraordinary lecture out there by Lawrence Lessing, a Professor at Harvard Law School on 'Aaron's Laws: Law and Justice in a Digital Age'. I can promise you that it is all worth watching it.
Having said that, not only copyright gets into the way of freedom of expression all the time, but also the first trumps the second. This is the courts' practice at the moment - on the national and international level. There is however one case which proved otherwise. I recently came it across.
Nadia Plesner is an artist living in the Netherlands. After a tragic accident and while going through two painful and distressing years, she came up with a very interesting idea. Nadia was concerned about the fact that mass media prioritises the wrong things. And she decided to do something about this. She created Simple Living. You can read more details on her website.
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| Credit to Nadia Plesner, http://www.nadiaplesner.com/simple-living--darfurnica1 |
You may have encountered Simple Living before. The picture depicts a little boy from Darfur. He holds a Chihuahua dressed in pink and a Louis Vuitton handbag. The picture and the accessories obviously point out to celebrities and Nadia Plesner had a specific one in mind. (It is not that difficult to take a guess). Simple Living became well-known and raised awareness. In fact Plesner says that she sold for the benefit of an organisation dedicated to helping people in Darfur. As expected, Louis Vuitton was not very happy with this.
The story becomes predictable at this point. In 2011 Louis Vuitton goes to courts asking Plesner to stop using its community design. The specific handbag, which listens to the name 'Audra bag', involves a pattern of graphic symbols which is of course protected by industrial design, a particular type of intellectual property right. Thus, on one hand, Louis Vuitton invokes its right to the protection of its intellectual property and, on the other hand, Nadia Plesner argues for her right to freedom of expression (in this instance artistic form of expression). Typically, courts almost always accept that the intellectual property right is a legitimate and necessary restriction to the freedom of expression. But not this time!
The Dutch appeal court (I will spare you with the details of the case, you can read an unofficial translation in english here) dismissed Louis Vuitton's claims. Instead it concluded that there is nothing unlawful in using Simple Living and the Audra bag as an eye-catcher for Plesner's exhibitions. Important considerations in the court's assessment was that Plenser used these for a non-exclusively commercial purpose and for mainstreaming a critical message of contemporary societies. It gets better: Louis Vuitton was ordered to pay Plesner's legal expenses :)
Win! Well-done to the Dutch court. As far as I know and from a quick search online, Louis Vuitton did not pursue this complaint further. My guess is that Louis Vuitton would not take the risk to be implicated in a case which would attract more negative publicity.
