Shirt reads "MY BOYFRIEND S A HELLS ANGEL"
Would you wear this shirt?
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:
- Purpose/character of use
- Nature of copyrighted work
- Amount/substantiality of portion used
- Effect of use on potential market
- News reporting
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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