Marielena Melero
Intellectual property law precedent is replete with instances of unauthorized uses of visual artists’ works. Whether it be through unauthorized inclusions in film,[1] television,[2] advertisements,[3] or even social media posts,[4] artists have found themselves surprised to stumble upon their work being used as the focal point of distinct projects. The Joan Mitchell Foundation currently finds itself grappling with this legal issue.
With a career spanning over four decades, Joan Mitchell is thought to be one of the greatest abstract artists of the postwar era.[5] Mitchell worked in a variety of mediums, such as pastel on paper, oil on canvas, and lithographic printing.[6] The Joan Mitchell Foundation notes, “[Mitchell] observed her landscape intensely, and her acute visual observations of form, space, and color in life were part of the visual memories she drew upon while painting.” Mitchell achieved critical and commercial success during her lifetime,[7] as evidenced by her large works typically selling for over $1 million at auction.[8]
In 2022, Louis Vuitton approached the Foundation asking for permission to use Mitchell’s works for a campaign, but the Foundation denied such request in writing “in accordance with its longstanding policy that images of the artist’s work be used only for educational purposes.”[9] In its statement, the Joan Mitchell Foundation makes clear that it has never licensed Mitchell’s works for use in promotions or commercial campaigns.
Despite the Foundation’s explicit opposition, Louis Vuitton launched a marketing campaign featuring three of Mitchell’s works—"La Grande Vallée XIV (For A Little While)" (1983); "Quatuor II for Betsy Jolas" (1976); and "Edrita Fried" (1981).[10] The campaign stars Léa Seydoux modeling the company’s Capucine handbags with Mitchell’s cropped works as the background.[11] The ad does not credit Mitchell or the Foundation.[12]
According to the Joan Mitchell Foundation’s statement, the organization sent Louis Vuitton Malletier a cease-and-desist letter on February 21st of this year “demanding that the company immediately withdraw its print and digital advertising campaign that illegally reproduces and uses at least three works by artist Joan Mitchell for the promotion of its commercial goods.”[13]
The three works were being exhibited at Foundation Louis Vuitton in Paris—a contemporary art space in Paris owned by LVMH—as part of an exhibition in which Mitchell’s paintings were juxtaposed with those of Claude Monet.[14] The Foundation argues that Louis Vuitton violated its license agreement for the Mitchell-Monet exhibition, in which Louis Vuitton is expressly prohibited from reproducing the artworks from the exhibit without consent.[15] In its statement, the Joan Mitchell Foundation makes clear, “If Louis Vuitton does not promptly halt this campaign and cease the illegal use of Mitchell’s artworks, [the Joan Mitchell Foundation] will promptly take further legal action to address this matter.”
Louis Vuitton has previously collaborated with artists such as Yayoi Kasuma,[16] Takashi Murakami,[17] and Jeff Koons.[18] In fact, Louis Vuitton had an ad campaign for the Capucine bags featuring Monet paintings at the the Musée de l’Orangerie in Paris, starring Seydoux well.[19] Simultaneously, Louis Vuitton is notorious for its legal efforts in protecting its intellectual property.[20] According to the New York Times, “Louis Vuitton has its own department for pursuing intellectual property disputes and claims on its website to have initiated more than 38,000 anti-counterfeiting procedures worldwide in 2017.”[21]
Copyright owners have the exclusive right to reproduce the work, prepare derivative works, and distribute copies of the work, among other rights.[22] And, the Copyright Act identifies a copyright infringer as “anyone who violates any of the exclusive rights of the copyright owner.”[23] Furthermore, if the infringement was willful, under section 504(c)(2) the court may increase the amount of statutory damages awarded.[24] Notwithstanding an author’s exclusive rights, the Copyright Act allows for the fair use of a work in order to account for an individual’s First Amendment rights, permitting the reproduction of a work for criticism or comment, for instance.[25] In deciding this, the court considers: the purpose of the use (whether it was for commercial or educational purposes), the nature of the copyrighted work, the amount of the work that was used, and the effect of the use on the potential market for or value of the copyrighted work.[26]
The Foundation said it will take “further legal action” if Louis Vuitton does not cancel the campaign. A potential ruling against Louis Vuitton would serve to solidify artists’ rights, particularly when large corporations are the adversary.
[1] See Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).
[2] See Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70 (2d Cir. 1997).
[3] Victoria Stapley-Brown and Helen Stoilas, Anish Kapoor Sues NRA for Copyright Infringement, Art Newspaper (June 19, 2018), https://www.theartnewspaper.com/2018/06/20/anish-kapoor-sues-nra-for-copyright-infringement [https://perma.cc/DJL4-RFX3] [https://web.archive.org/web/20230406002533/https://www.theartnewspaper.com/2018/06/20/anish-kapoor-sues-nra-for-copyright-infringement].
[4] See Mercedes Benz, USA, LLC v. Lewis, No. 19-10948, 2019 WL 4302769 (E.D. Mich. Sept. 11, 2019).
[5] Zachary Small, Joan Mitchell Foundation Claims Vuitton Ads Infringe on Painter’s Copyright, N.Y. Times (Feb. 21, 2013), https://www.nytimes.com/2023/02/21/arts/design/joan-mitchell-vuitton-ads-copyright-handbag.html [https://perma.cc/EK9F-62FQ] [https://web.archive.org/web/20230406002713/https://www.nytimes.com/2023/02/21/arts/design/joan-mitchell-vuitton-ads-copyright-handbag.html].
[6] Joan Mitchell: Biography, Joan Mitchell Found., https://www.joanmitchellfoundation.org/joan-mitchell/biography [https://perma.cc/N6ZF-U2P9] [https://web.archive.org/web/20230406002814/https://www.joanmitchellfoundation.org/joan-mitchell/biography].
[7] Id.
[8] Small, supra note 5.
[9] Statement on Unauthorized Use of Joan Mitchell Artworks in Louis Vuitton Ad Campaign, Joan Mitchell Found. (Feb. 21, 2023), https://www.joanmitchellfoundation.org/journal/statement-on-unauthorized-use-of-mitchell-artworks [https://perma.cc/PE7T-JVFS] [https://web.archive.org/web/20230406002906/https://www.joanmitchellfoundation.org/journal/statement-on-unauthorized-use-of-mitchell-artworks].
[10] Id.
[11] Small, supra note 5.
[12] Karen Ho, Joan Mitchell Foundation Issues Cease and Desist to Louis Vuitton Over Use of Paintings in Handbag Ads, Art News (Feb. 21, 2023, 6:47 PM), https://www.artnews.com/art-news/news/joan-mitchell-foundation-copyright-claims-louis-vuitton-handbag-ads-1234658446/ [https://perma.cc/A44M-Z6LL] [https://web.archive.org/web/20230406002959/https://www.artnews.com/art-news/news/joan-mitchell-foundation-copyright-claims-louis-vuitton-handbag-ads-1234658446/].
[13] Joan Mitchell Found., supra note 9.
[14] Small, supra note 5.
[15] Id.
[16] Miles Socha, Louis Vuitton Goes Big with Yayoi Kusama Collection, WWD (Dec. 19, 2022, 1:01 AM), https://wwd.com/fashion-news/designer-luxury/louis-vuitton-yayoi-kusama-collaboration-1235448193/ [https://perma.cc/UH9W-68SU] [https://web.archive.org/web/20230406003104/https://wwd.com/fashion-news/designer-luxury/louis-vuitton-yayoi-kusama-collaboration-1235448193/].
[17] Alice Newbold, This Was the Defining Fashion Collaboration of the Noughties, British Vogue (Nov. 11, 2020), https://www.vogue.co.uk/fashion/article/louis-vuitton-murakami [ https://perma.cc/S7M5-XRP6] [https://web.archive.org/web/20230406003330/https://www.vogue.co.uk/fashion/article/louis-vuitton-murakami].
[18] Louis Vuitton Unveils Masters, a Collaboration with Artist Jeff Koons, LVMH (Apr. 12, 2017), https://www.lvmh.com/news-documents/news/louis-vuitton-unveils-masters-a-collaboration-with-artist-jeff-koons/ [https://perma.cc/RJP5-DUWP] [https://web.archive.org/web/20230406003348/https://www.lvmh.com/news-documents/news/louis-vuitton-unveils-masters-a-collaboration-with-artist-jeff-koons/].
[19] Carlie Porterfield, Joan Mitchell Foundation Sends Cease-and-Desist to Louis Vuitton over Handbag Ads, Art Newspaper (Feb. 21, 2023), https://www.theartnewspaper.com/2023/02/21/joan-mitchell-foundation-louis-vuitton-handbag-ads-dispute [https://perma.cc/TFD2-QLQB] [https://web.archive.org/web/20230406003522/https://www.theartnewspaper.com/2023/02/21/joan-mitchell-foundation-louis-vuitton-handbag-ads-dispute].
[20] Small, supra note 5.
[21] Id.
[22] 17 U.S.C. § 106.
[23] 17 U.S.C. § 501(a).
[24] 17 U.S.C. § 504(c)(2).
[25] 17 U.S.C. § 107.
[26] 17 U.S.C. § 107.