Fake Louis Vuitton
Careful, that's not a Louis Vuitton
The leather-goods folks at swanky Louis Vuitton are none too amused at being the butt of a joke in this year's crass comedy hit "The Hangover Part II." Last week they filed a federal lawsuit against Warner Bros. over a scene in which the drug-addled doofus played by Zach Galifianakis fancies himself fancy because he is carrying what appears to be one of the company's bags. "Careful," he cautions in the movie, "that is a Louis Vuitton." The line is said to have become something of a pop-culture catchphrase, which has Louis Vuitton bent out of shape—specially since, according to its court filing claiming trademark infringement, the bag in question is a fake. The company wants the knock-off and the catchphrase excised from all copies of the film, and some compensation culled from the movie's profits for good measure.
This is hardly the first time Louis Vuitton has gone after a work of art incorporating one of its products. (Did I just refer to "The Hangover Part II" as a work of art? Shame on me.) Danish activist/painter Nadia Plesner daubed a canvas she styled as a modern version of Pablo Picasso's antiwar epic "Guernica." Her goal with the painting "Darfurnica" was to tweak the frivolous coverage of celebrities by media that should have been documenting atrocities in Sudan. Lacking even a fraction of the power of the original's searing depiction of terror, Ms. Plesner's work did have one compelling image—a small African child with suffering in his eyes holding, in the fashion of Paris Hilton, a pampered chihuahua in one hand and a Louis Vuitton "Audra" handbag in the other. Louis Vuitton sued her at The Hague, and early this year obtained a court order against her.
Ms. Plesner had tangled with Louis Vuitton over the image a few years before, when she had put the chihuahua- and Audra-toting child on T-shirts to raise money for Darfur relief efforts. T-shirts smacked of merchandising, and so when Louis Vuitton sued her then, Ms. Plesner settled. But this time around, the image was part of what was unambiguously a work of art, putting the painter on firmer legal footing. Ms. Plessner prevailed this May when a judge overturned the preliminary injunction and slapped the luxury firm with court costs.
Will Louis Vuitton have any better luck against "The Hangover Part II"? Not necessarily. Wham-O failed a few years ago when it sued Paramount Pictures for dangerously misusing a Slip'N Slide in the movie "Dickie Roberts: Former Child Star." But the luxury-goods company may have been encouraged to take legal action by the producers' willingness to settle with copyright claimant S. Victor Whitmill.
A tattoo artist in Missouri, Mr. Whitmill gained notoriety for inking boxer Mike Tyson's face with a design inspired by the tattoos of New Zealand's Maori people. A central gag in the movie is the horror of the character who wakes up from a debauch to discover he has been permanently disfigured with a Tyson-style tattoo. Mr. Whitmill had copyrighted the design and demanded his due. As the New Zealand Herald reported, Maoris themselves were less than pleased by Mr. Whitmill's intellectual-property claims: "The tattooist moaning about the breach of copyright copied it off Maori," tweeted Member of Parliament Tau Henare. "Bit rich to be claiming someone stole his 'design.'" Nonetheless, Warner Bros. cut a deal with the inkster that included an agreement to change the tattoo design in the release of the DVD version of the movie.
Blame the digital age in part for such cringing responses to copyright claims. Imagine, back in the days of physical film retouching, trying to redraw something like a face tattoo in every movie frame in which it appears. By contrast, it's altogether too easy to rearrange pixels, making it an attractive option merely to do some digital magic in post-post-production to remove any content that has proved legally problematic.
Less fancy digital options are open to less fancy producers. Reality television shows regularly save themselves the hassle of random litigation by blurring any and every trademarked or copyrighted image that wanders into the camera's field of vision. Last season on the A&E program "Storage Wars," a bidder bought the contents of a locker after catching a glimpse of what appeared to be a Louis Vuitton handbag. Alas for her bottom line, the bag proved to be a fake. But throughout the episode, even as the bag was filmed close-up to catalog the phony details of the knock-off, the purse was blurred and obscured.
The screen-smudging conceit is beyond silly, but you can't blame the producers of "Storage Wars" for trying to avoid excess trips to federal court. Even the most commonplace of utterances are now the object of intellectual-property litigation. "Storage Wars" antagonist Dave Hester—who yawps volubly every time he makes a bid—filed for a trademark on the word "Yuuup!" and is now in a legal tussle with rapper Trey Songz, who claims the guttural affirmative as his own "signature sound."
Which suggests a counterstrategy for Warner Bros. If "Careful, that is a Louis Vuitton" has really become a catchphrase, the filmmakers ought to trademark it. Then they can sue Louis Vuitton for using that trademark in its litigation against the "Hangover" crowd. I would say that one could describe that approach as a sort of "If you can't lick them, jine 'em" gambit, but then I might be served papers by the heirs of Indiana Sen. James Eli Watson, who declared that his own favorite catchphrase some 80 years ago.
(Published by WSJ - December 30, 2011)