Artworks in Action: Philipp Plein Has Allegedly Copied Copyrighted Artwork of Another Designer

*** The writing does not, and is not intended to, constitute legal advice by any means***

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Source: The Plaintiff Complaint

Hello! As you all know, I'm preparing day and night for the New York State Bar Exam that's around the corner. As much as I love to provide near-live coverage of lawsuits in the fashion industry, please understand that I have no option but to slow things down a little bit. I promise, however, I won't disappear and write posts occasionally for the next two months!

Philipp Plein is a Milan-based international brand known for its maximal and flashy design. Characteristic of his aesthetics, the brand's 2020 Spring/Summer collection featured flare-inspired mini dresses and studded jackets as well as various statement-making pieces embroidered with "KISS". Leaving merry kisses behind, Philipp Plein is now on the receiving end of a lawsuit in which Resurrect By Night ("RBN") claims that the Milan brand copied RBN's original artworks by incorporating them onto its 2020 Spring/Summer collection. The complaint, filed in the United States District Court for the Southern District of New York, sets out a claim of copyright infringement against the designer of global stature. See Complaint, Resurrect By Night, LLC v. Philipp Plein Americas, Inc., 1:21-cv-04948 (S.D.N.Y. June 4, 2021). As I always mention, it's a really good practice to go back to the complaint to get a good grasp of a series of events that led to the present litigation.

Left: RBN / Right: Philipp Plein
Source: The Plaintiff Complaint

According to the complaint, RBN was founded by Daren Chambers, "a self-taught artist who began drawing in the age of six." Id. at 5. After years of hard work, RBN managed to be featured on the shelves of Barney's (now gone) and the pages of GQ, thanks, in part, to how he makes his pieces. The complaint notes that he "repurposes and hand paints every unique piece", which is infused with "a distinct artistic sensibility" he himself has painstakingly developed over the years. Id. Chambers contends that Philipp Plein copied his two artwork designs (picture above), which are registered with the Copyright Office, and sold infringing pieces in various channels of distribution, including Farfetch and Alibaba's Tmall, thereby raking in illicit gains. Upon discovery of infringement, Darrens sent a cease-and-desist letter to Philipp Plein, but received no formal response. 

In order to make a case for copyright infringement in the Second Circuit, RBN needs to show that it is the valid owner of copyright and that Philipp Plein actually copied its copyrighted work. RBN can easily satisfy the first element with his registration certificate. Proving actual copying is trickier because evidence is almost always circumstantial in nature. Actual copying can be proved by a combination of access and substantial similarity. The complaint points out that Philipp Plein had access to his designs because RBN heavily promoted and advertised the artwork designs in dispute. (I think a better language would have been "a reasonable opportunity to view".) The rest of the complaint then attempts to demonstrate substantial similarity between the original designs and the infringing ones with the side-to-side comparison of photos. RBN is seeking both compensatory and injunctive reliefs as well as statutory damages in light of Philipp Plein's willful conduct.

On a concluding note, the complaint, in my opinion, could have been better drafted. I do hear Darren's story and his claim sounds meritorious. The strength of claim, however, is sometimes diluted by the dramatic language of the complaint. Yes, the complaint should tell the narrative that's favorable to the plaintiff. Still, at some points, it sounded colorful to me. Rather, the complaint should have focused more on the substantial similarity element of copyright infringement. If I were Philipp Plein, the answer would heavily dwell on how their designs are not substantially similar. (Note: The issue of substantial similarity will be a jury question in case of a trial.) There were tens of photos attached in the complaint, but it should have more intelligently pointed out some doctrinal basis rather than flatly stating that substantial similarity is obvious. Philipp Plein will soon file its own answer to the complaint, and I will keep you updated on how the case proceeds moving forward!