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Dafurnica: Is free speech at risk?

The protection based on design rights can go very far. This follows from a decision of the court in the Hague about the artwork Dafurnica of the Danish artist Nadia Plesner (free to Picasso’s work Guernica).
On this painting, Nadia Plesner included (amongst others) an African boy with a Louis Vuitton look-alike bag. Reason: celebrities like Paris Hilton and their expensive gadgets get all the media attention. While attention for humanitarian abuses in the world, like Darfur, is nowhere to be found. According to Louis Vuitton the image of the bag infringes her design rights on the pattern.
The court in the Hague prohibits every infringement on the design of Louis Vuitton by Plesner. Unfortunately, from this decision it is unclear whether the work of Plesner itself is regarded as an infringement or only the method of (commercial) exploitation of it. The painting Dafurnica is used as ‘eyecatcher’ at the exhibition of Plesner’s artwork. The “boy-with-the-bag” is also used on billboards. Earlier (in 2008) the image on t-shirts of the “boy-with-the-bag” was already banned in France. According to the French court, such (commercial) use of the design was not permitted.
In our opinion, the prohibition of the Hague court can only apply to the publicity for the exhibition and the promotion on Plesner’s website for her work, definitely not to the painting itself. And even such a “commercial oriented” prohibition goes far. Plesner should have freedom of speech on her own website. Louis Vuitton disagrees: give the child a big diamond ring or show a shiny car. This is not necessary; Vuitton has nothing to do with Darfur.
Plesner will fight the decision. Big chance that the prohibition will be narrowed or even completely cancelled.
Read the decision here (in Dutch).
Eva den Ouden and Maarten Haak

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