OMG infringement case

Hells Angels, a large motorcycle club listed by the U.S. Department of Justice as an OMG (outlaw motorcycle gang), is suing Wildfox for copyright infringement because of this shirt. The Hells Angels are giving Amazon heat for selling it but let's focus on Wildfox.

Shirt reads "MY BOYFRIEND S A HELLS ANGEL"

Would you wear this shirt?

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In the past, Hells Angels have successfully brought infringement cases against larger brands: Disney, Saks, and Alexander McQueen.

Despite past success, Hells Angels could lose this case against Wildfox on a copyright infringement claim.

I hope that Wildfox does not give into a settlement and instead looks for a fashion lawyer who can help the brand successfully claim an exception to copyright infringement. The Copyright Act allows fair use as a common law defense, which could work here.

Fair Use is determined by a 4 Factor Test:

1. Purpose/character of use
2. Nature of copyrighted work
3. Amount/substantiality of portion used
4. Effect of use on potential market

Non-exhaustive Fair Use Uses:

1. Criticism
2. Comment
3. News reporting
4. Teaching
5. Scholarship
6. Research

Fair use is an affirmative defense, so the burden of proof falls on Wildfox here. My thought is that given the right argument, a court can find that the use of "Hells Angels" on the pictured t-shirt constitutes fair use.

Wildfox's possible Fair Use argument points:

• the shirts serve as a criticism or comment
• even if the original intent was not a parody, the defense is available as long as a parody can be reasonably perceived as commenting or critiquing an original work
• the shirt design was purposely made grammatically incorrect to help serve as a parody (mocking the seemingly missing apostrophe in the Hells Angels name
• the shirts do not and will not cause cognizable harm to Hells Angels
• generally, a commercial nature behind a parody weighs against fair use, but despite commercial nature of this shirt, if a court were to do a balance of harms test, the benefits to the public are greater than any harm
• the shirt serves as a parody
• the shirt does not serve as a market substitute
• the shirts use an acceptable amount of copyrighted work because it uses what is necessary to make a parody (the name and wings trademark)

Possible counterargument for Hells Angels:

• the court has ruled that a supposed satirical work did not justify a fair use because it was too hard to tell how it critiqued the original work

Can you think of more arguments in favor or against Wildfox's design?

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