LEGO has been named in a copyright lawsuit about a jacket that adorns a single of its mini-figures in the Queer Eye set that it unveiled very last tumble. In the complaint that he filed in a federal courtroom in Connecticut in December, artist James Concannon asserts that in 2018, he designed a custom made leather-based jacket for Antoni Porowski, one of the stars of Netflix’s Queer Eye collection, which LEGO “intentionally” replicated for its Queer Eye-themed established devoid of searching for Concannon’s authorization and devoid of compensating him. What LEGO did do, Concannon claims, was to offer him “a totally free Fab 5 Loft established – which retails for $99.99 – for [his] 6-year-outdated son to engage in with, only to later revoke that present, telling [him] that LEGO does not give away its solutions for free.”
In accordance to Concannon’s copyright infringement complaint, Porowski wore a range of garments bearing his artwork on the Netflix show, and in all but one instance (when Porowski wore the leather jacket), Concannon claims that he acquired an email from a clearance coordinator for the exhibit to approve this kind of uses. (Is that actually important?) In gentle of his friendship with Porowski and specified that Porowski typically credited him as the creator of the performs that appeared on the exhibit, Concannon statements that when he saw the jacket – which he “created applying a plain black leather-based jacket that Porowski sent to Concannon, to which Concannon included his initial artwork, composing and arranging every single artistic ingredient to replicate his signature aesthetic” – on an episode of the present, he “figured this was simply an oversight on Netflix’s part and was not disturbed.”
Nonetheless, Concannon asserts that he while “never granted Netflix a license to screen the jacket on the clearly show (as he experienced in preceding circumstances where his performs ended up showcased on the clearly show), he unquestionably in no way agreed to enable LEGO – the most significant toy enterprise in the entire world, with around $5 billion in annual profits – to commercially exploit his artwork for free” in relationship with its Queer Eye set.
In furtherance of his infringement assert, Concannon argues that LEGO “painstakingly copied not only the individual innovative factors of the jacket, but the distinctive placement, coordination, and arrangement of the individual inventive elements, as very well,” for which he maintains a copyright registration with the U.S. Copyright Place of work.
Concannon further asserts in his complaint that right after sending a cease-and-desist letter to LEGO, the company’s counsel responded by telling his attorney that if they brought a situation versus LEGO, “it would be an ‘uphill battle’ [for them],” and claimed that “in effect, by gifting the jacket to his buddy Porowski recognizing that [he] would dress in the jacket on Queer Eye, Concannon was granting an ‘implied license’ to Netflix to use the jacket in any manner it delighted – which include sub-licensing the function to LEGO.”
Environment forth a one declare of copyright infringement, Concannon alleges that LEGO “infringed and will go on to infringe upon his copyrights in the jacket by, between other things, copying, publicly exhibiting, distributing, and building derivative performs of the infringing product, which is considerably related to, derived from and a spinoff of [his] primary artwork and style and design.” Against this background, he is looking for a monetary damages award for “all damages [he] endured and for any gains or attain by [LEGO] that is attributable to” such alleged infringement, which includes statutory damages and attorneys fees.
As for the deserves of the case, lawyer and mental property researcher Mike Dunford dove into it below. In addition to pointing to difficulties on the damages front (specifically, that when Concannon’s copyright was registered in November 2021, the use by LEGO predates that, ruling out statutory damages and attorney’s charges), Dudford takes concern with how significantly of the jacket is actually protectable offered that “the allegedly infringed get the job done is the artwork on the jacket, divided from the jacket,” itself, as copyright law only safeguards creative elements that are separable from a beneficial article, such as a jacket. (This was the major takeaway from the Supreme Court’s 2017 final decision in the Star Athletica case.)
So, in the scenario at hand, the protectable factor as a entire is “a wrap-all around two-dimensional picture of what is on the jacket,” for every Dudford, who contends, nevertheless, that “at the very least some of the components of the two-dimensional artwork are not independently protectable,” and says that he is not certain if some of them are even protectable in terms of “their position on a jacket with other things – in unique, the peace indicator on the lapel.”
The situation definitely hinges on no matter if or not the court docket finds that the “unique placement, coordination, and arrangement” of the features that seem on the jacket are, in point, “protectable and infringed notwithstanding the substitution of distinct personal artistic things,” Dudford notes.
A rep for LEGO was not instantly readily available for remark.
The scenario is James Concannon v. LEGO System, Inc. and LEGO A/S, 3:21-cv-01678 (D. Conn.)