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Fashion, Music and Intellectual Property: #tshirtgate

‘We are huge fans of their music and it was not our intention to disrespect these cultural icons. The t-shirts have been pulled from retail and all images have been removed.’ – Kendall and Kylie Jenner

Kendall and Kylie Jenner were catapulted into the spotlight on hit reality show ‘Keeping Up with the Kardashians’ and have since carved out successful careers as fashion and beauty models. Controversy is never too far away when it comes to the Kardashian-Jenner family and the latest furore relates to the sale of vintage t-shirts (now recalled) for their eponymous Kendall + Kylie fashion range.

What was #tshirtgate?

The Rock vs. Rap collection of vintage t-shirts divided public opinion and gave rise to hashtag ‘#tshirtgate’ due to outrage expressed on social media platforms about the likeness of the Jenner sisters and the KK graphic being superimposed onto the faces of rap legends Christopher Wallace, better known as Notorious B.I.G/Biggie/Big Poppa, and Tupac Shakur, as well as the album artwork of rock legends such as Metallica, Pink Floyd, The Doors, Led Zeppelin, Kiss and Black Sabbath.

Vintage t-shirts, particularly those of famous bands and artists, are classic and timeless pieces which make them very popular as they never go out of fashion. It is therefore unsurprising that the Jenner sisters released a limited edition range of vintage t-shirts just in time for the festival season – and following the release of the polarising depiction of the late Tupac Shakur in the film titled All Eyez on Me (2017).  However, the vintage designs which were retailing for $125 (£96) each have prompted the following social media postings – interesting that both Osborne and Wallace chose to use the same phrasing:

Intellectual Property and #tshirtgate: What is the law?

The applicable intellectual property rights in regards to t-shirt designs are copyright and trademarks. Copyright is a property right and under UK law, the copyright owner has the exclusive right to perform certain acts which are called ‘restricted acts’ in relation to that copyright work, by virtue of section 16 Copyright, Designs and Patents Act (CDPA) 1988.

The US equivalent of the CDPA is the Copyright Act 1976 and under section 501 of the Act, the legal or beneficial owner of the copyright can initiate an action for copyright infringement, and may be required by the court to provide records from the US Copyright office to demonstrate ownership of the copyright in question.

What are the legal consequences of #tshirtgate?

It has been reported that Michael Miller, an LA-based photographer who is critically acclaimed for the iconic album cover artwork for ‘Thug Life’ starring Tupac, has filed a lawsuit against the Jenner sisters for the unauthorised use of his photographs on the now infamous vintage t-shirts. However, a representative of the Kendall + Kylie brand has issued a statement asserting that the brand’s licensee manufacturer, Canada Inc, ‘did not copy anyone’s image, remove anyone’s copyright notice from any image, or attempt to exploit Mr Miller’s claimed right of publicity’ when it purchased vintage t-shirts displaying the images of performers.

There are potentially more legal disputes on the horizon for the Jenner sisters, as the Wallace estate has issued a cease and desist letter for the unauthorised use of the likeness of Christopher Wallace. In addition, the estate of Jim Morrison, the lead singer of The Doors, has issued a cease and desist letter for the use of registered trade marks (such as the band’s logo and the iconic photographs of Morrison) without authorisation.

How is a trademark defined?

A trademark is any sign that is capable of graphical representation including words, designs and letters under section 1(1) Trade Marks Act 1994. The cease and desist letter is only the starting point in a trademark dispute in which the trademark owner requests the recipient to immediately refrain from engaging in the infringing activities.

In the present case, this would be the manufacture, distribution and retailing of the Kendall and Kylie Jenner vintage t-shirts, as well as providing an account of all proceeds derived from the sale of the offending goods. The Jenner sisters are also accused of violating Jim Morrison’s ‘post-mortem right of publicity’ and failing to recognise the ‘right of his estate to control the use of his like likeness’ which is described as ‘offensive and incredible’.

Notably, the American legal system acknowledges the right of publicity. This right relates to control the use of one’s name, image and likeness for commercial exploitation and this right can be invoked posthumously.

Want to know more about intellectual property law? Visit our page!

Intellectual Property Law Guide

Words: Hilda-Georgina Kwafo-Akoto

To learn more about intellectual property law, take a look at our page on the different areas of legal practise here.

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