LEGO is sued for copyright infringement over the design of a leather jacket

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LEGO has been named in a copyright lawsuit over a jacket that adorns one of its minifigures in the weird eye together that he released last fall. In the lawsuit he filed in federal court in Connecticut in December, artist James Concannon claims that in 2018 he created a custom leather jacket for Antoni Porowski, one of the Netflix stars . weird eye series, which LEGO has “intentionally” reproduced for its Queer Eye-theme fixed without requesting Concannon’s authorization and without compensating it. What LEGO did, Concannon claims, was give him “a free Fab 5 Loft set – which costs $99.99 – for [his] six-year-old son to play with, only to revoke that offer, saying [him] that LEGO does not give away its products for free.

According to Concannon’s copyright infringement complaint, Porowski wore a number of pieces of clothing featuring his artwork on the Netflix show, and in all but one case (when Porowski wore the leather jacket), Concannon says that he received an email from a clearance coordinator for the show to approve such uses. (Is it really necessary?) In light of his friendship with Porowski and given that Porowski has often credited him as the creator of the artwork that appeared on the show, Concannon claims that when he saw the jacket – that he “created using a plain black leather jacket that Porowski sent to Concannon, to which Concannon added his original artwork, composing and arranging each artistic element to reflect his signature aesthetic” – in an episode of the show, he “thought it was simply an oversight on Netflix’s part and was unperturbed.”

However, Concannon claims that he “never granted Netflix a license to display the jacket on the show (as he had done in previous instances where his artwork appeared on the show), he did not certainly never agreed to allow LEGO – the world’s largest toy company, with over $5 billion in annual revenue – to commercially exploit its works for free” in connection with its weird eye together.

As part of its infringement suit, Concannon argues that LEGO “painstakingly copied not only the individual creative elements of the jacket, but also the unique placement, coordination and arrangement of the individual artistic elements”, for which it retains a copyright registration. with the United States Copyright Office.

Concannon further alleges in its complaint that after sending a cease and desist letter to LEGO, the company’s attorney responded by telling his attorney that if they filed a lawsuit against LEGO, “it would be a “hard battle”. [for them]”, and claimed that “indeed, by offering the jacket to his friend Porowski knowing that [he] would wear the jacket weird eyeConcannon was granting an “implied license” to Netflix to use the jacket in any way it pleased, including sub-licensing the work to LEGO. »

Submitting a single claim of copyright infringement, Concannon alleges that LEGO “has infringed and will continue to infringe its copyright in the jacket by, among other things, copying, publicly displaying, distributing and creating works derived from the counterfeit product, which is substantially similar to, derived from and derived from [his] original artwork and design. In this context, he asks for pecuniary compensation for “all the damage [he] suffered and for any profit or gain by [LEGO] which is attributable to “such alleged infringement, including statutory damages and attorneys’ fees.

As to the merits of the case, lawyer and intellectual property researcher Mike Dunford dipped in here. In addition to pointing out issues on the damages front (namely, that while Concannon’s copyright was registered in November 2021, LEGO’s use predates that, excluding statutory damages and fees attorney), Dudford disputes how much of the jacket is actually protectable given that “the allegedly infringing work is the artwork on the jacket, separate from the jacket”, itself, as the law on copyright only protects creative elements that are separable from a useful article, such as a jacket. (That was the big takeaway from the 2017 Supreme Court ruling in the Star Athletica case.)

Thus, in the present case, the protectable element as a whole is “an enveloping two-dimensional image of what is on the jacket”, according to Dudford, who however argues that “at least some of the elements of the jacket”. two-dimensional works of art are not independently protectable”, and says that it is not certain that some of them are even protectable in terms of “their position on a jacket with other elements – in particular, the peace sign on the reverse”.

The case really hinges on whether or not the court finds that the “unique placement, coordination and arrangement” of the elements that appear on the jacket are, in fact, “protectable and infringed notwithstanding the substitution of different elements individual arts”, Dudford Remarks.

A LEGO representative was not immediately available for comment.

The case is James Concannon v. LEGO System, Inc. and LEGO A/S, 3:21-cv-01678 (D. Conn.)

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