As it is well-known copyright is one of the main intellectual property rights that every creator can rely on in order to benefit from his or her created works. The problem with copyright is that it can invoke really complex disputes out of nowhere.
One example of this possibility is a recent lawsuit against LEGO, a toymaker company whose practice is to use characters and stories from famous movies or series for kids constructors.
In the case at hand, the company uses a design of a jacket, known as the “Concannon Jacket”, worn by Antoni Porowski part of Netflix’s Queer Eye reality show.
James Concannon is the artist who created this design, giving Netflix permission to use it for the show.
According to him, however, LEGO has no authorization to use the jacket design for their toys “Queer Eye – The Fab 5 Loft”, which are based on the reality show’s characters.
LEGO dismissed this accusation claiming that they use legally the jacket at least because they had a license from Netflix which in turn had permission from the artist for the same jacket.
Obviously one of the center moments here is what was the scope of the initial license and whether it includes such merchandising use.
According to the US Copyright law, apparel is not copyrightable as a whole. Only separable creative elements of it can be protected.
So the issue here is to what extent the original jacket’s elements are subject to copyright protection alone and to what extent those used by LEGO are similar enough in order for infringement to be found.
Source: SS Rana & Co – Ananyaa Banerjee and Nitika Sinha for Lexology.