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Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 24, Issue 7

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Newsletter Round Up: Updates on Your Favorite Articles

By Kristyn Webb

First, a big “thank you” to all our readers who have given feedback on our newsletter. We appreciate your interest and insights. It is always a treat to hear from you! Second, we wanted to provide you with updates on some of our most popular articles:

Queen of Christmas Sued for Copyright Infringement – Again – In November 2023, Mariah Carey was named in a lawsuit in federal district court for copyright infringement. The plaintiffs, musicians Andy Stone (stage name “Vince Vance”) and Troy Powers, allege that the so-called “Queen of Christmas” used their country music song “All I want for Christmas is You” as the basis for her hit pop song with the same title. Carey has filed an answer to the complaint, calling plaintiffs’ claims, “outrageous and insulting” and questioning why it took nearly thirty years for them to come forward. Carey’s answer claps back at plaintiffs calling their song “obscure” and contending that plaintiffs unlawfully copied their song from earlier songs, “including Bobby Vinton’s 1964 My Heart Belongs Only to You.” 

Tattoo Copyright Chronicles – Kat Von D, star of the reality TV series LA Ink, won at trial after being sued for copyright infringement by photographer Jeff Sedlik over Kat’s use of Sedlik’s iconic photograph of Miles Davis. Kat tattooed the image on her friend and posted the finished work on social media. The case went to trial, and a jury decided that the tattoo was not substantially similar to the photograph, and that Kat’s online posts were non-infringing acts of fair use.

Does Free Speech Protection Apply to Shoes? – Shoemaker Vans sued MSCHF, a Brooklyn-based art collective, for trademark and trade dress infringement after MSCHF teamed up with musician/artist Tyga to create the “Wavy Baby” sneakers. MSCHF argued that the First Amendment’s protection of free speech applied because the Wavy Baby shoe design was not a counterfeit of Vans’ Old Skool shoes and other products, but instead was a parody, or commentary on “sneakerhead” culture. The trial court did not buy MSCHF’s arguments and granted a temporary restraining order and preliminary injunction to stop MSCHF from continuing to sell the Wavy Baby sneakers. MSCHF appealed the decision but failed to convince the U.S. Court of Appeals for the Second Circuit that freedom of expression should trump consumer protection in this case. 

Trump “Never Surrender” Sneakers: Could They Surrender To Louboutin Red Bottoms?  – The Wavy Baby decision may have implications for another potential sneakers-as-speech lawsuit involving Donald Trump’s “Never Surrender” sneakers. Trump’s $399 USD gold colored, high-top sneakers, feature a red colored sole which bears a resemblance to Christian Louboutin’s “red bottom” trade dress designs. Louboutin has yet to take any formal legal action, though the Wavy Baby decision appears to weigh in favor of Louboutin’s position as the established rights holder. The United States is heading into another presidential election cycle, and political positions are once again starting to sharpen among the electorate and the general public. Louboutin will need to tread carefully to avoid damaging the strength of its brand, while avoiding potentially alienating any portion of its consumers by taking (or not taking) formal legal action against Trump.

​​​​​Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and holds a Master’s Degree in Copyright Law from King’s College London.


Published April 19, 2024

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