What You Can Learn About Lawsuits, Trademarks, and Copyright Issues from Kendall and Kyle Jenner
In case you missed the brouhaha, Kendall and Kylie Jenner started and abruptly stopped selling vintage shirts with their images superimposed upon those of Ozzy Osbourne, Gene Simmons, Notorious B.I.G., and Tupac Shakur. The tees were priced at an eye-popping $125 per shirt. The publicity-crazed sisters issued a short apology. This issue is over, right? Wrong!The firestorm @KylieJenner & @KendallJenner using images on T-shirts is far from over. Click To Tweet
Although most of the media have hopped on the social media outrage, there are bigger legal issues here and lessons for us mere mortals too.
Let’s Review the 5 Key Issues:
Intellectual Property – The sisters legitimately bought the shirts, what’s wrong with reselling them? According to Intellectual property attorney Barbara Murphy, of course consumers can resell goods. In fact, eBay is a marketplace of used items. However (there’s always a “however), you must sell them in an unchanged fashion. It’s part of the consumer protection of trademark law as she explains: “if you buy a can of Coca-Cola, you expect it to be the genuine article. Anyone changing the contents of it are trading upon the goodwill of Coke and misleading consumers.”
Trademark – Gene Simmons, for example, has a registered trademark for “KISS.” Using his logo and likeness without his permission is treading in dangerous waters. Further, as Voletta Wallace, mom of the late Notorious B.I.G. stated: “This is disrespectful, disgusting, and exploitation at its worst!!! This product has no affiliation to the Notorious B.I.G estate.” In other words, it appears as if the sisters never contacted any of the people who appeared on the shirts.
Copyright – The photographers of the famous rockers likely own the rights to their creative works. Even derivates of a copyrighted work retain rights according to attorney Murphy. Photographer Michael Miller just sued the sisters over Shakur’s image. Lessons on #trademark, #copyright issues for #entrepreneurs @MrsSOsbourne @OzzyOsbourne @genesimons Click To Tweet
Brand Damage – It’s hard to envision Ozzy Osbourne partnering with the Jenners and Kardashians. Perhaps it even hurts Ozzie’s image. His wife said it best with this tweet: “Girls, you haven’t earned the right to put your face with musical icons. Stick to what you know…lip gloss.”
An Apology Isn’t Enough – Of course, Kylie and Kendall issued identical apologies: “We did not mean to disrespect these icons and understand that we missed the mark completely.” An apology doesn’t stop litigation.
What were they thinking?
How could a family that manages to monetize every opportunity of fame not seek legal advice?
Doesn’t anybody in their organization analyze the market before jumping in?
How could the Jenners launch a new product without any forethought?Is it a #trademark or #copyright violation? If in doubt, leave it out! Click To Tweet
It seems to me that the Kardashians/Jenners have a long history of blatantly borrowing ideas. Witness the firestorm over Khloe Kardashian’s “inspired” looks by Destiney Bleu’s. Or, Kylie selling camo undergarments that looks eerily just like PluggedNYC . Or, “copying” a New Zealander’s eye shadow palette.
Lessons for Me and You
Remain Safe Rather Than Sorry – Here’s my mantra: “If in Doubt, Leave it Out!” If you don’t know whether you can legally use an image or not, for example, the answer is no. I’ve earned and learned the distinction of getting a cease and desist letter for a tennis photo. Of course, it also included a demand for $180 in usage fees. Yes, I paid it.
Litigation is Expensive – Unless you have deep pockets, recognize that defending your actions or pursuing your rights is expensive. Often, remediation is a simple injunction which stops someone from continuing the behavior; it’s doesn’t mean you are easily awarded monetary damages. Since I don’t want to pay unnecessarily for lawyers, I usually take the safe route.
Use Images Legally – Of course, we all know that just because an image is posted on the web doesn’t mean we can swipe it and use it. Google, however, does allow you to search for “free to use images” via these directions. Sites such as Pixabay, Negative Space, Lock and Stock Photos, Life Of Pix, and Streetwill also offer options for free images.
Bring an Attorney Into Your Camp – I believe every business owner needs an attorney on their side from the get-go. Again, safe rather than sorry.
All I can tell you is that I would never have dared to introduce a T-shirt product like Kylie and Kendall Jenner. My gut says it’s questionable and I just couldn’t afford the aggravation or the litigation. You must decide your level of risk; tread carefully.
NOTE: I am not a lawyer and anything stated here is not legal advice; I recommend that you consult with an attorney for consultation before proceeding (Yes, my attorney made me write that!)