Legal Review Plesner / Louis Vuitton judgment: Artistic Freedom vs Intellectual Property Rights
It have been exciting weeks for Danish artist Nadia Plesner.
Louis Vuitton sued her over the use of a look-a-like Louis Vuitton
bag in her artworks. With these artworks, Plesner tried to raise
awareness for the situation in Darfur. See
here for further background information.
Louis Vuitton claimed that Plesner’s artworks infringed upon her
design rights on the bag. Plesner relied on her fundamental right
on freedom of speech. More specifically: her artistic freedom.
After Plesner successfully challenged a judge of the Court in
preliminary relief proceedings at an earlier stage, (another judge
of) the Court in preliminary relief proceedings rendered a judgment
in this case recently. The Court ruled completely in favour of
Plesner. We published an English translation of the verdict on
MediaReport
here.
From the moment the case got a lot of media exposure, Louis
Vuitton suddenly claimed that the case had nothing to do with
‘Darfurnica’, and that therefore the ex parte order did not
extend to this painting. Louis Vuitton did not get away with that.
The Court rules that “also the exhibition and the offering for
sale of the painting fall under the prohibited acts since they are
described in number 14 of the application and the Court in
preliminary relief proceedings has referred to the operative part
of the judgment.” However, since Louis Vuitton stated during
the hearing that it had “no problems at all” with the
painting, the judgment focuses on the Simple Living drawing (the
above illustration).
The Court balances Plesner’s right on freedom of speech (Article
10 of the ECHR) with Louis Vuitton’s right on peaceful enjoyment of
property (Article 1 of the first Protocol of the ECHR). The Court
rules that “the interest of Plesner to (continue to) be able to
express her (artistic) opinion through the work “Simple Living”
should outweigh the interest of Louis Vuitton in the peaceful
enjoyment of its possession.”
In that respect, the Court rules that artists enjoy a
considerable protection with regard to their artistic freedom, in
which art may “offend, shock or disturb”. Plesner uses Louis
Vuitton’s reputation to pass on her society-critical message (the
situation in Darfur) and, besides the bag, she also depicts another
luxury/show business picture in the form of a Chihuahua dressed in
pink. Plesner did not suggest that Louis Vuitton would be involved
in the problems in Darfur. Furthermore, the circumstance that Louis
Vuitton is a very well-known company, the products of which enjoy a
considerable reputation, which it also stimulates through
advertising famous people, moreover implies that Louis Vuitton must
accept critical use as the present one to a stronger degree than
other rightholders.
The Simple Living drawing has to be regarded as a lawful
statement of the artistic opinion of Plesner. Plesner does not
infringe upon Louis Vuitton’s design rights. The Court adds:
“This is not different if the illustration is somewhat used as
an eye-catcher, all the more because Plesner has argued,
insufficiently refuted, that the work occupies a central position
in her oeuvre (concerning Darfur) and that to that extent
establishing extra attention (for the exhibition with the problems
in Dafur as a theme) is justified.” Therefore Plesner can also
use the drawing as an eye-catcher, something Louis Vuitton heavily
opposed.
In the end, the Court quashes the ex parte order with
retroactive effect, which means that penalties possibly forfeited
by Plesner, will not be due. By doing this, the Court overrules its
earlier judgments in this respect: “In view of the fact that the
respondent does not have any other remedies with which such a
measure can be disputed, under preliminary judgment - different
from what the Court in preliminary relief proceedings of this Court
assumed on 14 December 2009, iept 20091214 (Kruidvat - Adventure
Bags) - the review of the decision can be given with retroactive
effect. After all, a different judgment would imply that the
forfeiture of penalties in the interim as a result of a(n) (as
afterwards ruled: wrongly) issued ex parte decision cannot be
cancelled in any way whatsoever, since according to established
case law proceedings on the merits to be instituted cannot affect
the forfeited penalties as a consequence of the preliminary
measure. Therefore, the Court in preliminary relief proceedings is
convinced and will therefore pronounce the quashing with
retroactive effect.”
An important victory for the artistic freedom. We are very happy
for Nadia.
Nadia Plesner is represented by
Jens van den Brink,
Christien Wildeman and
Reindert van der Zaal.