Romero Britto sues Apple over copyright infringement

Apple was recently sued by the Pop artist Romero Britto over its "Start something new" campaign for using an artwork from the design duo Craig & Karl, that allegedly copies the design style which Britto is famous for. 

A screenshot of Apple's website of the "Start something new" campaign

Britto became aware of the copycat art when Apple launched its worldwide promotional campaign, but he discovered that the two artists had been systematically making art similar to his own for years.

Excerpt of the comparison offered in Britto's complaint

Britto is a Miami-based pop artist, internationally well-known, who works with several brands on advertising campaigns, using bright colours, strong lines and simple designs. According to his complaint, Britto's specific trade dress is "strong, fanciful, non-functional, and inherently distinctive. In addition, the Britto Trade Dress has acquired distinctiveness as a result of uninterrupted promotion and sale of Britto brand products and services".    

The lawsuit was recently filed in the US District Court, Southern District of Florida, against Apple and the graphic design duo for trade dress infringement, trade dress dilution, as well as unfair competition and copyright infringement.

Britto accused the two artists of violating the Britto trade dress and Apple for commercially exploiting the allegedly infringing image. Indeed, Apple uses Craig & Karl's image – representing a patchwork hand on a bright yellow background on one of its iPads in the graphics – to promote its new advertising campaign, describing how this image was realized on iPad Air 2 using IOS apps.

Further to Apple's massive advertising campaign and to the use of Craig & Karl's image in retail stores, many people contacted Britto under the false impression that he had created the infringing artwork. Britto received many incorrect congratulations on his new deal with Apple, as well as messages of dismay from business partners, and inquiries from collectors wanting to know if the image displayed in the Apple stores or on the Apple website came from him.

Britto contacted Apple asking the company to cease using the infringing image, but he did not receive a response. Therefore, he decided to file a lawsuit, asking for an injunction preventing Apple from using the infringing artwork and Craig & Karl from producing or using other copycat artworks, along with damages and attorneys' fees. 

The Dresses of Ellsworth Kelly - Considering Legal Protection in Fashion

Méditerannée, 1952 - Ellsworth Kelly

While flipping through the pages of Vogue's latest U.S. issue, I came upon an article about two dresses designed by world-renowned painter Ellsworth Kelly.  The New York Times also features an informative piece on the the Kelly dresses.  As clothing, or as a artwork, I think they are fantastic, and it's also a great opportunity to blog about legal protection in fashion, a topic I just spoke on last week.  The new dress, designed by Kelly and created by Francisco Costa of Calvin Klein is basically a remake of a dress that Kelly originally designed in France in 1952.  Kelly's original dress was made using brightly colored cotton that he purchased in the South of France.  Kelly used some fabric for a five-panel painting in cloth.  He gave the remaining fabric to a friend, Anne Weber, asking her to make the dress to his specifications (although in the end he was very bothered that she left the bottom blue panel so long).  The dresses feature color blocks that evoke Kelly's paintings.

One dress, created in France, and another (presumably) created in the U.S., receive different intellectual property protection.  Clothing designs are allowed far greater intellectual property rights in Europe.  At this point there are two layers of protection, that offered by individual nations and that offered by the EU Directive on Legal Protections in Design.  In France, where the first dress was made, fashion designs are classified as "works of the mind" and enjoy copyright protection.

In the U.S., clothing design receives almost no protection under copyright law because clothing is considered largely inseparable from its utilitarian functions.  U.S. copyright law, loath to protect to utilitarian items therefore only protects things likes original designs on fabric, or possibly non-utilitarin features of costumes.  While some designers are able to bootstrap their way into some level of protection through trademark and trade dress, clothing is largely unprotected and copycats are free to infringe upon new designs.

Only ten of the new Kelly dresses were made.  One was donated to the Metropolitan Museum of Art's Costume Institute, another to the Philadelphia Museum of Art.  With dresses and other clothing items gracing the galleries of some of the nation's premier museums, one would think the U.S. might start seeing fashion a little differently, but the fight to obtain greater intellectual property protection in the United States has been going on for over 100 years.  For the last twenty years, congressional bills seeking to extend some level of limited copyright protection to clothing have regularly been introduced and consistently died in committee, so it does not appear that change is coming any time soon.

Some have remarked that the dresses are so reminiscent of Kelly's paintings, that they really constitute drawings or sculptures, not just ordinary clothing.  Although it might be impractical, I can't help but wonder if these musings could represent an alternative theory for copyright protection of the Kelly dresses in the United States.