Iconic IP and freedom of expression: the battle lies ahead

When the IPKat first saw Nadia Plesner's Darfurnica (above), his first thought was that it was designed to reflect the tragedy that recently unfolded in Darfur by recalling the imagery of what is arguably Pablo Picasso's most powerful work, Guernica (below), a graphic and shocking depiction of the horror of the bombing of the small Basque town of that name by German and Italian planes at the behest of the nationalist forces during the Spanish Civil War. The Kat's first thought was whether the estate of the late artist would approve of her work on account of its sentiment or object to it on account of its conceptual and visual similarities to Picasso's own work.

In all of these musings the Kat didn't even notice one of the details of Darfurnica which has brought her work to the attention of the law courts in first France and now the Netherlands: the handbag sporting a Community registered design registered in the name of luxury fashion accessory house Louis Vuitton (for details of the Community registered design and a handy discussion of some of the legal issues which divide artist and icon-maker, readers are recommended to sample Rosie Burbidge's neat post on Art & Artifice here).

The incorporation of intellectual property-protected works into later works is not new -- two famous example of trade marks incorporated into art works are Manet's Bar at the Folies-Bergere and Andy Warhol's Campbell Soup tin reproductions (both here) -- and it has surprised the IPKat that artists have not made more frequent use of the potent imagery of trade marks as cultural symbols.

Both Rosie's report and this recent post on Eyeteeth state that Nadia Plesner is bringing a counter-suit before a Dutch Court in The Hague on Wednesday 30 March, seeking to assert her freedom of expression under Article 10 of the European Convention on Human Rights, but the Kat has learned that there is to be an earlier hearing today at which Plesner's lawyers are challenging the appointment of the judge presiding over the hearing, the outcome of which will be keenly awaited.

While the IPKat deprecates all forms of intellectual property infringement in commerce and believes that the value of strong and enforceable IP rights is critical for the success of any commercial enterprise that competes with others in the market, he is unable to accept that any economic IP right, be it copyright, trade marks or designs, should be allowed to impinge on the genuine expression of an opinion: the use of a Vuitton image (and it could equally have been any of a number of other companies' images) works so powerfully in works such as Darfurnica because of the significance which the public itself places, and the meaning it gives, to icons and images which make IP rights valuable. Having one's iconic emblems used as icons is part of the price any company pays for creating and being able to exploit them commercially.

Merpel adds that she very much doubts that Nadia Plesner has done as much damage to Louis Vuitton's IP by incorporating it into her image as Vuitton has inflicted on itself by making such a fuss about it (and she's still chuckling over all that fuss the same company made over Chewy Vuiton, here).

What do you think?  There's an IPKat poll at the top of the weblog's sidebar, here.