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?