Mona Mosavi
- The Controversy
James Charles is no stranger to online criticism. The 21-year-old media sensation first rose to fame as a YouTube beauty vlogger, and today, he is a makeup mogul with his own makeup line for Morphe Cosmetics.[1] None of this came without controversy, especially last year when James accused Wet N’ Wild of ripping off his Morphe eyeshadow palette.[2] Recently, the brand Teddy Fresh has raised accusations against James of ripping off the sweatshirt designs of Hila Klein, one half of the husband-wife Youtube duo H3H3.[3] Both James and Hila designed color-blocked sweatshirts and released them this year, leading to the following accusations against James.[4]
In an embroiled Twitter exchange, Ethan Klein, Hila’s husband, stated, “I know we didn't invent colorblocking but I'm having a hard time w the new james charles merch, it's the same exact design as Hila's. Combined with the fact that his audience is so huge, many people will assume he designed it and start accusing us of plagarism….”[5] In direct messages between James and Ethan, James even went so far as to say, “Oof, looking closer at the screenshot you just sent me I will give you the heads up that one of the color ways we’re doing IS actually an exact copy of the purple tan pink & teal hoodie you guys have…” but then retreats by saying, “All I can tell you is that I’ve never shopped on your website before so I did not copy your brand.”[6] Fans came to the defense of both James and Hila, with some saying that color-blocking is a generic pattern, while others claiming that James very clearly stole the designs of his adversary.[7]
- Is there a legal remedy available?
The Kleins may have a legal claim against James Charles, particularly in light of the recent Supreme Court decision Star Athletica, L.L.C. v. Varsity Brands, Inc.[8] Under the Copyright Act of 1976, a pictorial, graphic, or sculptural work is eligible for copyright if it is an “[o]riginal works of authorship fixed in any tangible medium of expression.”[9] While clothing is not traditionally protected under copyright, clothing designs may be eligible for copyright protections. Under Star Athletica, the Court held that fashion designs, as a work of authorship, can be copyrightable if: (1) the clothing “[c]an be perceived as a two- or three-dimensional work of art separate from the useful article,” and (2) if the design “[w]ould qualify as a protectable pictorial, graphic, or sculptural work, either on its own or fixed in some tangible medium of expression.”[10]
Assuming Hila holds a copyright, her color-blocking may be considered copyrightable if it is sufficient for both prongs. Firstly, the color-blocking design can be very easily separated from the useful article, the hoodie. It has a distinct pattern and color scheme that was clearly fine-tuned and deliberately chosen by the artist. The Twitter exchange between James and Ethan demonstrates this, as Ethan even goes so far as to show that his wife has been creating this design since 2017.[11] Secondly, color-blocking can, on its own, stand as artwork if it were affixed to a canvas. Therefore, it is likely that the fashion design may be eligible for copyright.
Nevertheless, James may argue that the Kleins’ design was not “original” enough to be eligible for copyright, particularly because this design could be seen as generic. Many of his fans have been seen on Twitter coming to his defense for this exact reason.[12] In addition, James alluded to this in his Twitter exchange with Ethan: “I designed the pastel [hoodie] based on the Nike hoodie…,” implying that even if he did copy someone’s design, it is generic enough to not be protected by copyright.[13] Nevertheless, James may still be in hot water because Star Athletica found a simple, angular, and two-toned cheerleader apparel design to be eligible for copyright.[14] Assuming that the Kleins have a copyright for their design, James could potentially face a legal battle over an infringement of their artistic work.
For reference, the first image is Hila Klein’s design. The second image is James Charles’ design.
[1] Sara Spellings and Kathleen Hou, Who is James Charles?, The Cut (May 13, 2019), https://www.thecut.com/2019/05/who-is-james-charles-beauty-youtuber.html.
[2] Sandra Song, James Charles Accused of Ripping Off Merch Designs from Another YouTuber, Paper (September 19, 2020), https://www.papermag.com/james-James-h3h3-2647713730.html?rebelltitem=22#rebelltitem22.
[3] Margot Harris, Beauty Guru James Charles Accused of Stealing Clothing Designs from Youtubers Ethan and Hila Klein, Insider (Sept. 21, 2020), https://www.insider.com/james-James-accused-stealing-merch-designs-by-ethan-klein-2020-9.
[4] Id.
[5] Id.
[6] Id.
[7] Sandra Song, James Charles Accused of Ripping Off Merch Designs from Another YouTuber, Paper (September 19, 2020), https://www.papermag.com/james-James-h3h3-2647713730.html?rebelltitem=22#rebelltitem22.
[8] Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 U.S. 1002 (2017).
[9] 17 U.S.C. § 101.
[10] Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 U.S. 1002 (2017).
[11] Margot Harris, Beauty Guru James Charles Accused of Stealing Clothing Designs from Youtubers Ethan and Hila Klein, Insider (Sept. 21, 2020), https://www.insider.com/james-James-accused-stealing-merch-designs-by-ethan-klein-2020-9.
[12] Id.
[13] Id.
[14] See Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 U.S. 1002, 1016 (2017).