KARDASHIAN’S KOPYRIGHT KONUNDRUMS

KARDASHIAN’S KOPYRIGHT KONUNDRUMS

My love is as a fever, longing still

For that which longer nurseth the disease,

Feeding on that which doth preserve the ill,

The uncertain sickly appetite to please.

                                   -Shakespeare

Without putting too fine a point on it, let’s just say that the longing desire to nurse the disease of my appetite has to this point precluded me from judging Kim’s many follies and foibles . . .  and foibles . . . and follies [Bobby Kardashian rolls over in grave].  It is therefore with a heavy heart that I write this post.  Oh my dearest Kimmy, why doth thou torment me so?

Earlier this month, CFDA Award winning jewelry designer, Alexis Bittar, accused Kardashian, who has borrowed his jewelry in the past for a number of photo-shoots and red carpet events, of copying his design aesthetic for her own jewelry collection, Belle Noel.  As Bittar told the Post, “I passed the Dash . . . store on Broadway [undoubtedly to gawk at the sea of tweens in from Long Island to spend daddy’s money on a new hot pink, bedazzled velour tracksuit], and I saw that Kim’s pieces were very similar to mine, and she definitely has been taking note (of my designs).”

When asked whether he would sue, Bittar replied, cryptically, “[y]ou have to be very careful to pick and choose your battles. I haven’t talked to Kim about it, the truth is she might not even know. She might be so far removed from it (the design process), and her designers just go shopping and knock things off. But we are definitely not lending to Kim any more, she has been barred.”

Absolutely none of this should come as a surprise to anyone, Bittar included.  Kardashian isn’t a designer.  She’s famous for having a sex tape and a nice body.  That’s it.  End of story.  This isn’t the first time that she’s been accused of copying the work of another designer, and it will likely not be her last.  As Bittar told the Post, “[i]n the reality TV world, there are so many people coming out with lines to capitalize on their TV shows. They are not designers and they are just stealing.”  All we have is ourselves to blame for deputizing talentless celebutantes with enough power, money and unapologetic, undefeatable rich-girl swag to do whatever they want, consequence free.  Indeed, the hundreds of style blogs to pick up the story all noted that Bittar would likely not pursue legal action.  This, however, begs the more interesting legal question – can he sue and would he win?

A quick discussion of the rules associated with copyright infringement is unavoidable.

The Copyright Act [“the Act”] confers legal protection over “original works of authorship fixed in any tangible medium of expression,” in categories including, literary works, musical works, dramatic works, choreographic works, pictorial, graphic and sculptural works [where jewelry design falls], motion pictures, sound recordings, and architectural works.  See 17 U.S.C. § 102(a) for an exhaustive list.  The copyright holder has the exclusive right to reproduce the copyrighted work, prepare derivative works based on the copyrighted work, and distribute copies of the copyrighted work to public.  See 17 U.S.C. § 106(1)-(3).  Thus, “anyone who violates . . . the exclusive rights of the copyright owner . . . is an infringer,” subject to legal remedy.  17 U.S.C. § 501(a).

However, the Act is clear to note that “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.”  17 U.S.C. § 102(b).  Rather, the point of the Act is to protect the original expression of an idea, i.e., the expression of an earring from the mind of Bittar, not the idea of an earring itself.  See Feist Pub., Inc. v. Rural Telephone Serv. Co., Inc., 499 U.S. 340, 345 (1991).  Thus, in order for Bittar to establish a claim of infringement, he must demonstrate that Kardashian actually copied his work, and that substantial similarity exists between his collection and hers.  See Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 110 (2d Cir. 2001); Ann K. Wooster, Annotation, Application of Copyright Law to Jewelry, 30 A.L.R. Fed. 2d 557 (2008).  With these two requirements, alone, we can already see some of the problems that would arise in establishing Bittar’s claim.

Bittar could argue that that act of loaning his jewelry to Kardashian in the past gave her “a reasonable opportunity to see the work” and thus sufficient access to copy his designs and overall aesthetic.  R.F.M.A.S., Inc., v Mimi So, 619 F.Supp.2d 39, 61 (S.D.N.Y. 2009).   Indeed, “[a]ccess may be inferred when a defendant had a reasonable opportunity to view the plaintiff’s work before creating its own.”  Eyal R.D. Corp., v. Jewelex New York, LTD., 576 F.Supp.2d 626, 642 (S.D.N.Y. 2008).  However, Kardashian could simply reply that, regardless of the access requirement, there is no substantial similarity because, for the courts, mere originality “does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, [and] not the result of copying.”  Feist Pub., Inc., 499 U.S. at 345.  For example, in Jewelry 10, Inc. v. Elegance Trading Co., the court found for the substantial similarity of several pieces, arguing that the infringing party purchased the jewelry, obtained information about manufacturing with the intent of reproducing the jewelry, and made exact copies of the styles with only slight modifications.  1991 WL 144151, at *1 (S.D.N.Y. 1991).  However, in this same case, the court also dismissed the infringement of a number of pieces, arguing that copying of the overall design aesthetic, as well as the use of shapes and materials similar to that of the copyright holder is usually not specific enough to “satisfy the standard of substantial similarity.”  Jewelry 10, Inc., 1991 WL 144151, at *4.

This is some of the more superficial legal analysis concerning the infringement of jewelry copyrights, and we can already see a few significant hurdles that Bittar would have to confront in order to make a claim against Kardashian.  On the face of it, Bittar may well establish infringement for specific pieces, such as the earrings, which an ordinary or discerning observer would likely consider substantially similar to one another, but as we saw in the Jewelry 10 case, any judgment with respect to these specific pieces wouldn’t impact the non-similar pieces or the overall design aesthetic of the collection.  See R.F.M.A.S., Inc., 619 F.Supp.2d at 64 (discussing the ordinary observer and the discerning observer tests for establishing substantial similarity in copyright infringement claims).

Thus, while the blogs were quick to state that Bittar wouldn’t take legal action, from the few quick points mentioned above, it’s not entirely certain that he has a case worth pursuing.