Homage or infringement?
Creative license is increasingly being put to the test as artists, entrepreneurs and designers appropriate, interpret and reimagine logos and brands without consent. To the former, their designs are like a DJ mix set — their interpretation of a work. To many of the brands, however, these efforts are often illegal.
With resale and sustainability markedly on the rise, consumers’ appreciation and quest for repurposed goods is not expected to wane in a post-pandemic retail world. The elevation of sneaker heads as legitimate businesses, auction houses’ interest in big-ticket customized kicks and Gen Z’s label-adverse and individualistic preferences could make repurposed brands more of a cultural mainstay than a passing trend.
But taking liberties with other brands’ designs has legal consequences, as millions were recently reminded of when Lil Nas X started a firestorm of publicity last month after offering 666 pairs of Nike Air Max 97s as “Satan shoes” with the Brooklyn-based art collective MSCHF. The shoes include a drop of blood from the members of the collective’s design staff, are engraved with a bronze pentagram and reference a Biblical passage about Satan falling from Heaven.
Nike sought and was granted a temporary restraining order from the U.S. District Court in New York to halt distribution. Lawyers for MSCHF reportedly said 665 pairs of the shoes have already shipped since the $1,080 shoes sold out within minutes online. The sneaker company had sued for trademark infringement, false designation of origin, trademark dilution and common law trademark infringement and unfair competition, according to documents filed in the federal court in the Eastern District of New York.
Nike settled the lawsuit with MSCHF Thursday with the Brooklyn-based collective agreeing to buy back the customized “Satan Shoes,” as well as the “Jesus Shoes” that had previously been sold to consumers.
A few days ago, though, it was Nike that came under fire for another interpretation. The U.S. Postal Service said the upcoming Air Force 1 “USPS” Experimental Shoe, which feature a patch inspired by the Priority Mail shipping label, is neither licensed nor otherwise authorized by the USPS. The statement noted that “the USPS receives no tax dollars for operating expenses and relies on the sale of postage, products and services to fund its operations, protect its intellectual property…sales of unauthorized and unlicensed products deny support to the hardworking women and men of the postal service.”
USPS officials were not available for further comment Wednesday and a spokeswoman did not say whether any legal action is planned against Nike.
Repurposing logos is a well-worn path in the art world, thanks to Andy Warhol, Tom Sachs, Richard Prince, Donald Drawbertson and the street artist known as “Zevs.” And the designer-artist collaboration has also gained traction, as indicated by Marc Jacobs teaming up with Takashi Murakami in 2002 during his Louis Vuitton days. More recently, Kim Jones at Louis Vuitton and Dior Men’s has joined forces with a variety of artists.
Fashion designer Miguel Adrover was considered a renegade in 1999 when he repurposed a Louis Vuitton handbag into a miniskirt for his first runway show. The following year he also reimagined Burberry products as his own. “Louis Vuitton never came after me. The New York Yankees came after me, because I put the baseball caps on the shoulders of the sweatshirts. I find it kind of normal. Now I see the guy from Gucci [Alessandro Michele] does the New York Yankees baseball caps. They have a collaboration. But at that time, they tried to sue me,” Adrover said. “Burberry actually sued me.”
A WWD cover image of a model in Adrover’s show wearing an upcycled Burberry plaid ensemble prompted the lawsuit, he said. “I think Burberry got scared because maybe they thought I was trying to sell the plaid,” Adrover said. “We got over that. They made me sign something that said I would never use the plaid again — blah, blah, blah.”
Adrover claimed that several months ago “a lot of people” contacted him and urged him to look at a Burberry image with an inside out and backward coat by Riccardo Tisci. “Exactly the same way that I had used it. And I got sued by them. Now he’s using it. He kind of copied my interpretation and used it for the label. It’s so funny. They hired people to do the thing that I did 20 years ago,” Adrover said.
Instead of reaching out to Burberry, Adrover said he placed the controversial Burberry-inspired raincoat that he had created on a mannequin in late November. “Then I made a video [for Instagram] that I was walking on the road, dragging the mannequin. Let me take the label for a walk,” he said with a laugh. “I got kind of upset because they didn’t even mention me.”
A Burberry spokesperson balked at that claim Wednesday, saying, “These allegations are completely without merit and we reserve the right to vigorously defend ourselves against them.”
Lil Nas’ use of Nike branded sneakers was tricky for Adrover. “If you buy sneakers, does it matter whether it is Nike, Adidas or whatever? You probably have the right to reinterpret that product and sell it again because you already bought it once. When you own it, you’re supposed to do whatever you want with it. It doesn’t come with any instructions like you cannot sell it, for example. You can sell it. You can alter it. This is something that we really need to talk about. It is a different story when you produce something with another label, because you’re kind of ripping [it] off. In my case, when I reinvented other things, I always tried to give it a new life and new perspective on the piece. If I was doing raincoats with the Burberry label on them, that would not be fair for anybody.”
Artist and Olympic snowboarder Trevor Andrew, who is more widely known as GucciGhost, started reimagining Gucci products in 2013 and began working directly with Gucci in late 2016. Having worked with about 20 brands, Andrew viewed the Lil Nas situation from both sides. “Obviously, brands are really sensitive about certain religious things and stuff like that. I’ve been told by Gucci in certain scenarios that there were things that they were uncomfortable with. In most cases, I would just do my own thing. If you didn’t really f–k with it, they would kind of ignore it. I’ve been lucky in that sense.”
Andrew said despite being in a time when as an artist you can look at a brand or a product to put your spin on it, “obviously brands are going to put their foot down at a certain point if somebody does something that they don’t like. That doesn’t mean you have to stop doing it [though],” Andrew said. “My mantra was, ‘Sue me or hire me.’ So I was prepared for that moment.”
Making the point that he was “essentially a nobody,” when he started retooling Gucci, the artist said had the fashion company sued him at that moment “it would kind of mean that I was doing something that affected the culture. And I would have almost welcomed that in a sense. It was a project where I was working across all these mediums just trying to grab some kind of focus or attention as an artist and a creative. It was almost this performance out of desperation.”
Acknowledging how Nas is a huge star with such a large audience and has an impact on culture, Andrew said, “It kind of sucks that it happened. But I can see it from both sides because I’m the artist, too. In his shoes, I’d be like, ‘Damn.’ From Nike’s viewpoint, again like I said, I’ve been inside the big corporate houses of all these different brands. Obviously, they get real sensitive about certain things. The whole Satan, blood…they were probably like, ‘Whoa. Hold up.’ This might have triggered them.”
Another controversial artist, Max Papeschi, said he really admired what MSCHF did with the shoes and found the work funny. He said he could not see how people would be offended. “It’s just a game,” Papeschi said. “Maybe it speaks about the globalization of big brands. Satan in this case is just a symbol. It’s a symbol of evil.”
In 2010, Papeschi sparked a worldwide controversy for his “Nazi Sexy Mouse,” a mural of a swastika above a woman’s naked body outstretched on a bed with a “Minnie Mouse” face. The Italian artist said his gallery had requested an image for a poster and he only learned later that it created a mural that was posted on the side of a building in the center of a city in Poland. Within an hour, he heard from people all over the world asking, “‘What is this?’ and ‘Why did you do that?’”
Understandably, many were offended by the image beyond Poland, where millions of Polish citizens perished during World War II. Papeschi said, “Nobody knew exactly what I wanted to say. The Nazis thought it was against Nazism so they broke the big poster and put graffiti on the gallery. Some Americans thought it was against the U.S.,“ he said, adding that people of Jewish descent were also offended. “It was very strange for me. Everybody was angry. But I was speaking about the language of advertising.”
The media attention led to many interviews with magazines from around the globe, which allowed him to explain the piece. “In the end, it was not bad for me. Sometimes you do something that has a scandal but this helps you to enter in the art world. The important [thing] is your artwork is sincere,” he said.
He continued, “Of course, I support the artist. With the kind of work that I do, I understand it. Every artist needs ‘fair use’ to use logos. I use a lot of logos and characteristics from big brands. Whenever you do art, you have to be free to use everything.” The legal doctrine of fair use promotes freedom of expression by permitting the unlicensed use of copyrighted-protected works in certain circumstances. But he pointed out, “Normally when you do art, you sell one piece, or between one and nine copies. The number of pieces [of the Satan shoes sold] is more like the shoe market.”
The controversy is made even more interesting because MSCHF had created Jesus shoes two years ago, which also used Nike Air Max 97 sneakers but with the addition of holy water from the Jordan River. Nike did not sue over those shoes.
“Why would Nike sue on this rather than various other artists who took their shoes as inspiration?” asked Douglas Hand, a partner with the law firm of Hand Baldachin & Associates LLP. “What it tells you is a lot more people worship God than worship Satan, and Satan is still bad for business. For many consumers, the symbolism is anti-God and anti-goodness and Nike can’t be associated with it.”
A Nike spokesperson declined to discuss the matter, saying: “We don’t have further details to share on pending legal matters. Nike will continue to act to enforce its rights in its trademarks and designs.”
Reinterpreting pieces has become commonplace in fashion, with artists routinely using sneakers or denim jackets as their canvases. In most cases, fighting against that in court has been replaced by the ubiquitous “collaboration” in a classic case of “If you can’t beat ’em, join ’em.”
Levi’s is a case in point: the denim brand created an entire Authorized Vintage program to source and resell some of its most coveted pieces, and partners with Re/Done, an independent company that repurposes Levi’s pieces, for the same purpose — deciding that it was better to link with Re/Done than to sue it. And their relationship is strong. As Jen Sey, Levi’s brand president, said: “We’ve partnered with Re/Done for years to remake authentic vintage Levi’s products into new and interesting garments. We think it’s really struck a chord with today’s consumer and benefits both brands.”
Levi’s also has a strong relationship with Atelier & Repairs, another independent business that reworks products from the denim giant and other brands to give them new life. “We’ve never had a problem with anyone,” said cofounder Marisa Ma. “Atelier & Repairs is meant to be a service to brands to recirculate product.” Her partner, Maurizio Donadi, added: “Our channel was derived from repurposing leftovers.”
Although the company does not source its products directly from Levi’s, the companies have had countless conversations about what can be altered and what cannot. While A&R has free rein to reinforce and embellish secondhand product, there are certain no-nos. As Ma explained: “There are clear parameters. In the case of Levi’s, they were very clear: we could do our work as long as we did not change the original labeling. We honor the integrity of the original brand. Our goal is to enhance the original product in a fun and original way.”
Donadi added: “It’s up to the original brand owner or trademark holder to determine whether it enhances the product or not.” It doesn’t hurt that Donadi also worked at Levi’s earlier in his career.
Ma said A&R recently partnered with The RealReal as well to rework damaged and leftover designer merchandise with the full blessing of the designers. But “the sneaker industry is a different beast,” Ma added. A&R is transparent, so trademark infringement hasn’t been an issue. “If MSCHF had gone to Nike to ask if they could do the Satan shoes, there’s no way in hell they’d agree to it,” Ma said. “The intention is important, and Maurizio looks at it as art.”
Donadi weighed in: “I don’t know what their real intention was,” he said of MSCHF. “But somebody bought 666 Nike shoes and resold them for $1,018 as limited editions. To me, it doesn’t look like art. I don’t see the message.” His partner added: “It’s really a commercial play.”
In addition, in the case of MSCHF, the association with Satan crossed a line, prompting Nike to file the lawsuit, according to Hand. In addition to trademark infringement, the sporting goods giant sued for trade dilution by tarnishment, a legal term that says the reputation of a famous mark is harmed through association with another similar mark or trade name. It “brings the brand into disrepute by associating with something negative,” the lawyer explained. “The Prince of Darkness meets that standard.”
And it can lead to confusion among consumers who might believe Nike was complicit in the creation of the Satan shoes. “Nike’s track record is mostly, ‘Let’s work together,’ but this one just crosses the line,” Hand said. “It is potentially detrimental to business in the minds of consumers.”
Although Nike not taking similar action against MSCHF for the Jesus shoes may ultimately be held against it if the case goes before a judge — but whether the art collective has the financial wherewithal to battle the lawsuit remains to be seen. The publicity that the Satan shoes generated may be good enough for the smaller company. “From the artists’ perspective, it shines a spotlight on the brand and that it is a provocative collective,” said Hand. “So that may just do what they wanted — they just didn’t want to wind up in court.”
Suneal Bedi, assistant professor of business law and ethics at the Kelley School of Business at Indiana University, expects the Nike case to set a precedence. “There is something called the first sale doctrine. That just means you can sell things that you bought. So if I want to buy a pair of Nike shoes, I can sell them. Often that’s been interpreted to mean, ‘I can customize them, put my name on them, or use a Sharpie to do something cool and then sell them. For the longest time, we’ve felt that was ok.”
While MSCHF had effectively done that, Nike was upset about the association with the devil and Satan, Bedi said. Referencing a case from last year, Bedi noted how Rolex won a trademark infringement case against La Californienne, a company that had repurposed its watches with colorful faces and watch bands.
In advance of Thursday’s settlement, Bedi speculated that Nike’s legal action could “send a message to a lot of fashion companies, particularly big brands, that says, ‘Any time that someone takes your product, cuts it up, makes it their own and sells it – if you don’t like what that’s doing to your company, you can bring an action to get an injunction to get them to stop.” Bedi said. “It could have a lasting effect – for sure.”