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 its 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.
Would you wear this shirt?
Wildfox should settle instead of going to court because 1) who wants to take on the Hells Angels? and 2) Wildfox would waste a lot of money trying to defend itself rather than just removing the shirt from its stores.
BUT it would be awesome to see this fashion law infringement case play out in court. Thus I think Wildfox should not give into a settlement if it can (literally) afford to take the case to court. Wildfox should instead find 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. Given the right argument, a court can find that the use of “Hells Angels” on the pictured t-shirt constitutes fair use.
Possible Fair Use argument ideas for Wildfox
- 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
- commercial nature of a parody generally weighs against fair use; however, despite commercial nature of this shirt, a balance of harms test could show that 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 in this Hells Angels infringement case
- 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
- Hells Angel may argue that any critique is unclear and that instead Wildfox is just utilizing the gang’s reputation and name to sell shirts
Hells Angels are also giving Amazon heat for selling the shirt.
Last year, in its case against Alexander McQueen merchandise, Hells Angels also went after retailers selling the merchandise. At issue in that Hells Angels complaint was McQueen’s Hells Angels’ jacquard winged death dress, a knuckle-duster ring, a scarf, and a handbag. Saks Fifth Avenue and Zappos.com were included in the lawsuit. The case settled. McQueen agreed to remove the merchandise and recall and destroy merchandise sold.
The products were from one of Lee McQueen’s final collections. And products Lee McQueen later was found dead. It was believed that he hung himself. Although the police did not find the death suspicious, they did not definitively call it a suicide. The death occurred in London. Hells Angels can travel to London. But I am not saying the Hells Angels caused the death. No seriously, Lee McQueen was going through hard times having just suffered the loss of his mom and a great friend. But if Wildfox CEO has a mysterious death after this Hells Angels infringement case…