

Florida Artist Claims Apple Stole His Style - saidajigumi
http://recode.net/2015/04/14/florida-artist-claims-apple-stole-his-style/

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saidajigumi
Some "IANAL, but I try to pay attention" questions below. From the re/code
article:

 _Britto’s “distinctive style of artwork has become so famous and pervasive as
to constitute a distinctive trade dress that identifies the highly-coveted
lifestyle brand,” the complaint said._

From the complaint[1]:

 _This is an action for trade dress infringement, unfair competition and false
designation of origin or sponsorship /endorsement under the Lanham Act, 15
U.S.C. § 1125(a); trade dress dilution under the Lanham Act, 15 U.S.C. §
1125(c); trade dress infringement, trade dress dilution, unfair competition,
and deceptive and unfair trade practices under Florida law; and copyright
infringement under the U.S. Copyright Act, 17 U.S.C. §§ 106 and 501, arising
from Defendants’ blatant and repeated unauthorized use of the artwork of
world-famous visual artist, Romero Britto, in their products, stores,
marketing, and promotion_

I'm reasonably familiar with the basic landscape of copyright vs. trademark
vs. patent law, but not the trade dress matters brought up in this complaint.
Can anyone summarize what the plaintiffs will have to prove in order to make
their case re: the trade dress issues in the complaint? Likewise, I'd
appreciate a pointer to a good primer on the subject if anyone can recommend
such.

[1] (PDF): [http://pdfserver.amlaw.com/dbr/Britto-
Apple041315.pdf](http://pdfserver.amlaw.com/dbr/Britto-Apple041315.pdf)

~~~
briandear
The plaintiff is going to loose this lawsuit. Trade dress is essentially
packaging. The Coca Cola bottle is considered trade dress. Essentially Lanham
act protects trade dress only when said trade dress functions as a trademark
would.

Even if the alleged trade dress does function as a trademark, the plaintiff
would still have to establish that there is a likelihood of confusion between
the plaintiff and Apple. That would be a huge stretch by any standard because
Apple doesn't sell art, they sell computers. The likelihood of proving that a
consumer would confuse Apple with some artist is extremely small.

In terms of the artistic style, Romero isn't particularly interesting or even
original. Artist Joseph Peirmatteo, for instance uses a similar style:

Piermatteo example: [http://lesintemporels.fr/wp-
content/uploads/2015/03/piermatt...](http://lesintemporels.fr/wp-
content/uploads/2015/03/piermatteo_comme_sur_des_roulettes.jpg)

Romero: [http://uploads3.wikiart.org/images/romero-britto/first-
love....](http://uploads3.wikiart.org/images/romero-britto/first-love.jpg)

Picasso: [http://www.umma.umich.edu/images/view/collection-
galleries/p...](http://www.umma.umich.edu/images/view/collection-
galleries/picasso-two-girls-reading.jpg)

Marceau Constantin: [http://www.avignon-et-provence.com/musee-provence/musee-
marc...](http://www.avignon-et-provence.com/musee-provence/musee-marceau-
constantin/img/visage.jpg)

We also have obvious stylistic "borrowing" from Roy Lichtenstein..

and James Rizzi: [http://www.galerie-am-dom.de/prdimages/James-Rizzi-_Day-
or-n...](http://www.galerie-am-dom.de/prdimages/James-Rizzi-_Day-or-night-my-
city-is-bright.jpg)

in terms of that "black outline" mentioned in the article, Keith Haring uses a
similar technique and color palette.

The point is that artistic style isn't trade dress. If that were the case then
Cubism would have ended with Picasso and Braque. Pop art would have ended with
Warhol. Interestingly, Artists have appropriated brand names (i.e. Campbell's
Soup, Brillo) for their own artwork (from which they made a significant
financial gain,) so Apple, appropriating an artistic style is returning the
favor.

I find it interesting that the suit has to claim that Romero Britto is a
"world-famous visual artist." That's subjective. An Apple customer in Dallas,
Texas or San Diego is very likely not going to be confusing Apple's ads with
Romero. Even if there were some kind of connection, it would be an "homage"
and not a dilution of Romero's "brand." For example, using an audio clip in a
commercial that sounds like a Bob Dylan guitar riff (but isn't,) isn't
infringing on Dylan's trade dress. Providing that there Romero is financially
harmed in this case is going to be next to impossible. In fact, his stock
likely goes up after this -- which explains why he's suing Apple. It's all
about the payday, not the damage to his art.

