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.
Iconic IP and freedom of expression: the battle lies ahead Iconic IP and freedom of expression: the battle lies ahead Reviewed by Jeremy on Monday, March 28, 2011 Rating: 5


  1. I can also see Paramount and Facebook trademark being used in this painting.. what do their lawyers think about that?

  2. If Louis Vutton had not have sued, I wouldn't have known that it was their handbag that was being used. All this has done is given me a negative impression of their company, and their customers.


  3. Just read the other blogs cited in this post and the decision by the Dutch court here and the case doesnt seem as simple as I understood it to be.

    The French court prohibited selling of T-shirts and Posters titled "simple living" which just had a Sudanese child holding a chihuahua and Vuitton bags. See pg 4 of Decision for the picture not the same as darfurica.

    The present case before the Dutch court was because she was "using her work or art as an eye-catcher for her own products and work.. as signboard (not the darfurica but see pg 12 of decision) for her current exhibition in Copenhagen."

    The court considered that "in view of the present use, it is unlikely that there is a ground for
    justification for the advertising and merchandising for the artist's own work" and thus gave an injunction.

    Though I would support freedom of expression, each case goes by its facts and it would be intresting to see how it goes in this particular case where the artist has allegedly used it in economic sense of advertising and merchandising their own work.

  4. That is such a terrible painting, I can't say I have much sympathy with the artist.

  5. Freedom of expression is not about sympathy. On the contrary, the less sympathy one feels towards another person, the more FOE should be respected.

  6. It reminds me of a matter I had a few years ago which was (un)fortunetaly not decided in court. For the opening of a new museum some designers made a statement with a poster at a bus shelter showing a - in the meantime very - rightwinged politician wearing a suit for a special price 'under the trade mark'. The message of this work of art was not clear at all (a lot of works of art bear this character). What can you do? I had loved to fight this case, but every trade mark will loose this fight in the end. It's useless. Real trade mark owners look the other way. You can't fight art in the end.


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