I just came across this story in The Hollywood Reporter Online (where I also recently guest blogged about Twilight, fair use and copyright norms) – probably nothing to brag about…
In a new blog post, Eriq Gardner recounts a story of Summit Entertainment (the movie studio that holds the movie rights to the Twilight series) suing a women’s fashion designer for selling a jacket worn by the lead character (Bella Swan) in the first Twilight film and advertising it as being worn by Bella Swan in the movie. The tag line for the ad is: “Bella Swann (sic) wears this jacket in Twilight and scores the hottest vampire in high school, and so can you!”
The designer is being sued for copyright and trademark infringement. The interesting thing is that the jacket was already on sale before the Twilight movies were made, and was picked out by one of the costume designers on the first film at the last minute (off the rack) when they were looking for something in a blue color for Bella to wear. Summit is apparently seeking an injunction to stop all further sales of the jacket, an account of profit for all sales of the jacket and delivery-up of any unsold jackets. There seems to be something wrong with this from an IP law standpoint, particularly as the jacket was already being commercially produced and sold before being used in the movie and presumably the advertising for the jacket doesn’t suggest an affiliation with the movie producers (perhaps difficult to tell without more information)? In any case, is Summit over-reaching in respect to remedies? Shouldn’t a disclaimer cure the trademark issue? (Says she, knowing full well that that argument never works in the Internet TM context.)
And what of copyright? Presumably the copyright claim has to do with referencing the copyrighted character in an ad campaign for the jacket? Summit can’t be claiming copyright in the jacket itself (for a whole host of reasons). So isn’t the appropriate remedy an order that the designer stop referencing the protected material in its ads, rather than delivering up all the offending jackets?
This looks like an egregious overreach to me, particularly on the TM side. If the trademark claim is really based only on that statement, it is (or at least should be) a dead loser. This is nominative fair use, and Playboy v. Welles seems quite on point.
Just as your post is misleading by failing to disclose the facts of the case, so is this designer’s intentional infringement on someone else’s trademark to sell her product. Perhaps if they hadn’t created a tag inside the jacket clearly using the TWILIGHT and BELLA trademarks, then maybe Summit wouldn’t care – but if you’re going to start profiting on a product you own by changing the name and producing a logo that does not belong to you, well, then, what’s so confusing about that being wrong?
Tracy – I wasn’t at all intending to be misleading by failing to disclose material facts. I was not aware that the defendant had included tags inside the jackets that utilized the plaintiff’s protected marks. Those facts were not included in the news stories I saw which I linked to in the original post. I would be interested in knowing more about those additional facts if you would care to share.
Perhaps there’s something more underlying the copyright claim too, but if the copyright claim is that the designer refers to copyrighted characters by name, that seems like a nonstarter. Names are not copyrightable. And if it’s the jacket, there’s an obvious originality problem.
you can still purchase the original Bella twilight Hoodie at hoodiepeople.com http://bit.ly/6SIi2o
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