Legal Review Plesner vs. Louis Vuitton judgment: Artistic Freedom Prevails Over IP-rights

simple-livingIt 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 yesterday. The Court ruled completely in favour of Plesner. We published an English translation of the verdict 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.”

Nadia Plesner is represented by Jens van den Brink, Christien Wildeman and Reindert van der Zaal.