A Little MSCHF Never Hurt Anybody
They say imitation is the sincerest form of flattery, but for Brooklyn-based MSCHF Product Studio, Inc., this does not seem to be the case. If you haven’t already heard of MSCHF, you may have heard of some of their products: the Jesus Shoes, the Satan Shoes, and Spot’s Rampage are just a few of their most controversial releases.[1] Each release includes a manifesto identifying the specific purpose of the item, which is typically to lampoon corporations and consumers for contributing to the negative effects of capitalism on society. [2] One could describe MSCHF’s work as heroic, taking a stance against big businesses that can get away with printing their name on just about anything and slapping a price tag on it. Opponents, however, like Nike’s legal team, seem to disagree.[3]
MSCHF has earned their infamy via parody: taking a piece of creative work and imitating it to make a commentary or comedic statement.[4] Parody is protected by the First Amendment, and has been solidified as a fair use defense to copyright claims in several Supreme Court cases, most notably in Campbell v. Acuff-Rose Music, Inc., where the Court noted that a parody’s commercial nature is not determinative as to whether such work qualifies as copyright infringement.[5] The fair use defense, codified at 17 USC §107, allows a copyrighted work to be used for purposes such as criticism or comment, without obtaining a license, based on a judicial balancing of at least the following four factors:
(1) Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
(2) Nature of the copyrighted work
(3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole
(4) Effect of the use upon the potential market for or value of the copyrighted work.[6]
MSCHF’s Satan Shoes will be examined under these four factors, as they were the release that sent Nike into a frenzy. The shoes in question were Nike Air Max 97’s, or at least they were until MSCHF got a hold of them.[7] The finished product released by MSCHF was an interesting departure from the original design of the sneaker, including a number of satanic symbols, red lettering indicating the production number of each shoe, and most notably, actual blood from the employees at MSCHF.[8] At first glance, the shoes appear slightly macabre, but not so extreme that they escape being mistaken for original Nike’s.[9] When Nike filed its complaint against MSCHF in March of 2021, they appeared to be quite upset at this fact, especially regarding the apparent relationship that the shoes present between Nike and MSCHF.[10]
When the Satan Shoe was released, certain consumer groups became outraged over what they believed to be satanic imagery displayed on sneakers released by Nike, as MSCHF did not dissociate themselves with Nike upon releasing the shoes.[11]In their complaint, Nike requested “an order granting an award of damages suffered by Nike according to proof at the time of trial,” referring in part to potential for lost profits from consumer group boycotts over the Satan Shoe’s mistaken authorization by Nike. [12] The connection between the boycotts and lost profits for Nike is clearly drawn, but how liable is MSCHF? Nothing from the product’s release implies an intent to harm Nike’s business, but their overarching goal of ridiculing corporations does lend itself to the idea that MSCHF was aware that the production of these sneakers could cause harm to Nike’s image. This topic was partially addressed in Campbell, where the court stated that “when a commercial use amounts to mere duplication…it clearly supersedes the objects…and serves as a market replacement for it, making it likely that a cognizable market harm to the original will occur.”[13] The court continues, stating “when, on the contrary, the second use is transformative…market harm may not be so readily inferred.”[14]
The Campbell court’s discussion of market harm is precise and clear for their case at hand, but it did not preempt the deviancy of MSCHF. Applied here, factor 1 leans in favor of infringement for the shoes — while its possible to conjecture about the deeper message behind the product, money talks. MSCHF was primed to earn over $650,000 from the product’s drop, which does not suggest a nonprofit educational purpose, and in fact, does suggest revenue as a substantial purpose in releasing the shoe.[15] Factor 2, as stated in Campbell, “is not much help in resolving this and other parody cases.”[16] Under factor 3, the amount and substantiality of the copyrighted work used by MSCHF is overwhelming, taking the entire finished product of Nike and adding somewhat minor details that do not strip the original product beyond recognition.[17] Regarding factor 4, however, the work was clearly transformative enough to elicit a response from boycotters that would not have otherwise batted an eye at the original Nike product.[18] It is not enough to call the shoes a substitution, as the real harm arguably came from the consumer response to their satanic imagery, not from their immediate likeness. The Satan Shoe appears to be both a market replacement and a transformative work, turning a large initial profit for MSCHF and hurting Nike’s brand image while simultaneously acting as a fairly novel product.[19]
This duality that Campbell does not resolve is where MSCHF has found their niche. Warping typical consumer items into weapons against themselves, MSCHF is performing parody in a gray area between replacement and transformation. Each new release leaves the legal mind curious, to which I raise these questions: Where does the court recognize the boundaries of parodical economic warfare? Should internationally dominant corporations face a higher tolerance for copyright infringement claims? Who will be MSCHF’s next victim?
These questions could have been settled in the Eastern District of New York, if not for Nike’s acceptance of a settlement offer: giving refunds on all 666 pairs of Satan Shoes released by the company.[20] Considering the shoes retailed for $1,018 per pair, one might think that MSCHF would be dissuaded from similar kinds of parody in the future.[21] If you follow MSCHF, however, you already know that this isn’t likely, and that their name is soon to be atop another complaint in the near future. Perhaps the courts will be able to weigh in on the practices of this devious company, and shed some light on the line between blatant copyright — and a little mischief.
Footnotes
