Are New York City landmarks and skyline protectable elements? Luxury firm argues they're not in defence against souvenir seller.
The US arm of luxury firm Balenciaga is defending showing a New York City souvenir-inspired bags and sweatshirts as part of its resort 2018 collection, which it for upwards of $1,000.
The Paris-based design house is responding to a lawsuit launched by City Merchandise Inc, based in New York. The plaintiff describes itself as ‘one of the country’s largest souvenir wholesalers,’ and alleges the fashion house infringed federally registered copyright by copying its version of a New York City cityscape design. Balenciaga denies any wrong doing and claims NYC souvenirs lacks valid copyright protection for the New York City landscape design. The firm stated City Merchandise ‘copyright is invalid and/or unenforceable, and its claim of copyright infringement ‘is barred to the extent that it claims rights to elements of works that are scenes a faire, are otherwise not original, or are otherwise not protectable by the copyright asserted in the Complaint.’ Scenes a faire is a legal doctrine denying copyright protection in instances of ‘expressions that are standard, stock, or common to a particular topic, or that necessarily follow from a common theme or setting.’ Balenciaga argues that NYC landmarks and skyline does not have any protectable subject matter. The Balenciaga bags show some similarity, but the ‘more discerning observer’ test will apply in the second circuit, which includes New York, to assess substantial similarity when the plaintiff’s work has both protectable and unprotectable elements.
Balenciaga also argues in its filing that claim should be barred from succeeding because the City Merchandise acted with ‘unclean hands,’ the fashion house is ‘not liable for actual damages because [City Merch] has not suffered any such damages,’ ‘any infringement… was not willful, because [it] had a good faith belief that any use of the work covered by the asserted copyright was permissible.’