“Belgian Designer Accuses Virgil Abloh of Copying. Again.”
(This paper is only for educational purposes. This is just a case study. )
The defamatory imputations in the publication may include:
1, Original words written by Ezra Marcus, the reporting fellow of the NYT – ”The implication, of artistic theft, was clear.”
2, Original words from Mr. Van Beirendonck and Ms. Scafidi –
Mr. Van Beirendonck said, ”It’s very clear Virgil Abloh is not a designer”. ”He has no language of his own, no vision. He can’t create something of his own season after season and that is painful”.
Ms. Scafidi said, ”The mens rea doesn’t matter,”…”As long as there is a similarity between the objects and there was at least some reasonable potential for one to have seen the other, and clearly that’s the case here.”
https://www.nytimes.com/2020/08/13/fashion/virgil-abloh-walter-van-beirendonck-kanye-west-louis-vuitton.html
Though this publication may contain defamatory imputations, it is lawful to be published based on the following defences:
Limited defences –
The relevant defences under this category may include Qualified Privilege and Fair Comment & Honest Opinion.
As per the general principle illustrated by Stephens v West Australian Newspapers Ltd, even though the common law on the occasion of qualified privilege protects both personal reputation and freedom of speech because of public interest,[1] the common law favors the protection of individual reputation over ‘’public interest” often equivalent to ‘’curiosity’’.[2]
The Test of Public Interest – To justify that a publisher deserves the privilege to break such a dilemma, the publisher must prove that the ‘’public interest’’ it cares about is more than ‘’public curiosity’’, more than providing those ‘’kitschy’’ or ‘’sensational defamatory news’’ in the tabloids.
When New York Times publishes such a defamatory story, it is upholding serious standards or values in a wider community. This is in line with the principle that any publication should be ‘’made for the welfare of society’’. [3]
1, Qualified Privilege
There are two forms of Qualified Privilege relevant to the original words written by Ezra Marcus, the reporting fellow of NYT:
“The implication, of artistic theft, was clear.’’
1) Common Law Interest-Duty to Communicate to the Public
This quote is the publisher’s interpretation of the images posted on Instagram by Mr. Van Beirendonck to show the similarities between Mr. Abloh’s design and his design. The link to Instagram is included in the publication.
The accusation of Mr. Abloh being an art thief is implied in this quote. The similarities between the two designs are apparent. But how to draw a line between “inspiration” and ‘’artistic theft’’, or how many percentages of ‘’similarity’’ is legal, is an issue determined by the court according to Patent or Design Law. This quote definitely lowers Mr. Abloh’s reputation.
However, based on the principle set by ABC v Comalco Ltd, ‘’there was a duty in the appellant to publish information, albeit defamatory, on that subject and a legitimate corresponding interest in the viewers to receive it’’. [4] The duty to publish information can be echoed by another legal principle that the publisher has ‘’a legal, social or moral interest or duty to communicate something to another person’’.[5]
A moral and social duty to communicate to the public – By pointing out the potential ‘’artistic theft’’, NYT has tried to exercise its public duty to warn the public that their “common interest needs to be protected”. [6]
Such duty ‘’depends on the nature of the subject-matter’’. [7] This publication raises an issue as to the originality of fashion design. A widely accepted moral standard is if you copy something from others, such conduct is unethical. Extrinsic material shows New York Times with an international reputation is held in very high regard by journalists. It has a moral duty to safeguard the openness of information as well as to expose “something potentially disgraceful”. The moral duty is sufficient here for defense. [8]
The social duty to publish such information is ‘’for the convenience and benefit of society’’, [9] because LV, ‘’valued at $32 billion in 2019’’, is a symbol of functional capitalism driven by creativity and innovation.
A legitimate corresponding interest in the viewers to receive it – Legitimate Public Interest can be defined by the matter which ‘’affects people at large’’. [10] Even though the originality of LV’s design is not a matter to concern everyone like a voting issue,
given the value of the top media, the NYT readers, many of whom are subscribers who might also be consumers of LV, will most likely care about the design capacity of LV regarding originality, which is vital to keep this industry thriving.
More specifically, the legitimate corresponding interests might include commercial interest. The original design is one of the reasons why the consumers are willing to pay more money, this is the quid pro quo between LV and its consumers. If LV becomes a ‘’pirate’’, the brand would also be devalued. The public absolutely has the legitimate interest and right to information equivalent to the freedom of speech.
2) Malice
Qualified Privilege defence is motive relevant and requires the absence of malice. The most important element of malice is as follows:
Purpose of publication is outside the scope of given privilege [11] – This legal rule provides that to prove the absence of malice one must only publish the matter without abusing the privileged occasion. When identifying the privileged occasion, the principle is a ‘’reciprocity’’ link must be established between the publisher and the recipients (the public). [12] This element also demands that the duty is a must-have premise to justify any defamatory imputation.
The ‘’reciprocity link’’ is similar to the “quid pro quo” identified in the section above. As discussed above, either reader of the New York Times or consumer of Louis Vuitton, has an interest to learn the true value of a top global luxury brand, and New York Times has a moral and social duty to provide insightful information, however defamatory, to the public based on the concern of a ‘’greater good’’ to a wide community.
Honest Test –
If the privileged occasion is not abused and the corresponding duty is found, the publisher’s “honest belief in the truth of the matter is not ultimately decisive. “ [13]
2, Fair Comment / Honest Opinion
‘’It’s very clear Virgil Abloh is not a designer’’.
“He has no language of his own, no vision. He can’t create something of his own season after season and that is painful.”
The defences for the quotes above fall under the category of fair comment & honest opinion.
1) Fair Comment
Several elements must be met to satisfy the requirement of ‘’Fair Comment’’. [14]
a) Imputation must be a Comment.
The absence of allegation – One of the key distinctions between comment and allegation of fact, is whether the defendant uses the legal term to make an assertion, for example, the difference between ‘’such conduct is disgraceful’’ and ‘’P has been guilty of disgraceful conduct’’. [15] Guilty is a legal term. If Mr. Van Beirendonck said, ‘’ Virgil Abloh should be guilty of not creating original design’’, that is not a comment.
Based on the facts (TRUE facts) – Another distinction between these two concepts is that a comment must be based on the facts clearly and sufficiently stated. [16] Also, judging by the rule, even ‘’disparaging expressions of opinion’’ is protected by civil law and the freedom of speech, if the publication contains a factual element that is true, such ‘’disparaging expressions’’ are comments. [17]
The disparaging attitude is implied in Mr. Van Beirndonck’s expressions and in context. He is trying to depreciate Mr. Abloh that he is someone of little worth to be called a designer. However, he is making lawful expressions that are supported by factual elements visible to the readers of NYT that in this publication those images manifest the similarities between the two designs. Simply put, to produce something similar to others’ design is disputable to be regarded as a “designer” in common sense.
However, in the artistic world, no one standard dominates. Several standards may be employed to define whether someone is a designer, such as education, commercial success, employment, or receiving critical acclaim for “iconoclastic originality” which is the signature style of Mr. Van Beirendonck.
Having said that, Mr. Van Beirndonck’s quote is by all means supported by certain factual elements to justify that this comment is a comment based on the facts.
Criticism is also a comment – “He has no language of his own, no vision. He can’t create something of his own season after season and that is painful.” These words would be better understood as art criticism.
Pursuant to the legal principle in the case Kemsley v Foot, the key point is ‘’the attack is not on the personal character of the person libeled, it is on him as responsible for certain productions…’’ [18]
Mr. Van Beirendonck was describing someone who has no systematic thinking, no imagination, and lacks originality. All these labels are merely related to one’s “professional capacity” to do something original. The attack is more on Mr. Abloh’s design, not on his personal character, despite it’s unavoidable to project such an attack on the person. Furthermore, by submitting design work to the public, a creator such as Mr. Abloh who leads LV menswear line naturally invites criticism. [19]
b) Comment must be on a matter of Public Interest.
SimilarPublic Interest has been identified in the section of Common Law Interest / Duty.
c) Comment must be based on True or Privileged Facts stated, referred to or notorious; and
The facts evidenced by those images have been spread on the internet, including New York Times, Instagram, and other social media platforms, Mr. Van Beirendonck’s comment also referred to these facts. The corresponding link satisfies this test. [20]
d) Comment must be Fair.
The definition of Fair Comment raises the issue of whether such a comment is “affected by any Personal Hostility.” [21]
Several attacks and counterattacks co-exist in this publication. By responding to Mr. Van Beirendonck’s comment, Mr. Abloh addressed that such a comment could be ‘’a hate-filled attempt to discredit his work’’. Given the fact that at only 39 Mr. Abloh already became ‘’one of the first Black men to lead a global luxury brand’’ and Mr. Van Beirendock didn’t have a chance to achieve equal success, It’s possible that Mr. Abloh has potentially attracted some haters including Mr. Van Beirendonck.
However, regarding malice or personal hostility, there should be some ground to prove the existence of ill-will or other negative factors and they ‘’actuated the publication” (the comment). [22] The word ‘’actuate’’ here can be interpreted as ‘’cause’’, for that reason the causation must be established between the possible hate feeling and Mr. Van Beirendonck’s comments. Otherwise, it would render such an accusation invalid.
In other words, is it an emotion-driven comment, or a fact-driven comment? The evidence (images) in the publication shows that it’s more likely a fact-driven comment because of the similarity between the two designs. If we borrow ‘’but-for test’’, we can also conclude that but for Mr. Abloh created something similar to Mr. Van Beirendonck’s design, Mr. Van Beirendonck would not have bothered himself to make such public comment in New York Times.
Besides, ‘’fair’’ comment doesn’t preclude subjectivity, and so long it is based on facts the comment is honest. [23] Those images showing the similarities between two designs prove that Mr. Van Beirendonck makes honest comments however opinionated.
2) Honest Opinion / Statutory Protection
Section 29 of Defamation Act 2005 (SA) provides similar elements to those required by common law identified above, such as (a) being an expression of opinion rather than a statement of fact; and (b) related to public interest; and (c) based on proper material.
Those images showing similar designs no doubt can be accepted as ‘’proper material’’.
Unlike a statement of fact which is objective and absolute, an expression of opinion is deemed as subjective and relative. In our case, if Mr. Van Beirendonck says:
- Mr. Abloh is not a designer because he has never been educated formally.
- Mr. Abloh is not a designer even though he is the most powerful designer in this industry.
- Mr. Abloh is not a designer as he has never won any awards.
The above quotes will all be expressions of opinion based on different angles. However, if Mr. Van Beirendonck says:
- Mr. Abloh is not a designer because the court found him liable for the infringement on my design rights.
This is a statement of fact unless we argue the jurisdiction difference. Hence, what Mr. Van Beirendonck said is an honest opinion entitled to be protected by s 29 of Defamation Act 2005 (SA).
Another defamatory but honest opinion in this publication could be what Ms. Scafid said ‘’the mens rea doesn’t matter…as long as there is a similarity between the objects…”. Ms. Scafidi has somehow implied that no matter what, Mr. Abloh can be convicted due to the similarity between two designs even without mens rea.
However, the readers of this publication will be able to identify from the context this is just a hypothesis, not a statement of fact, such an offensive statement will be deemed as merely Ms. Scafidi’s opinion. [24]
(END)
[1] Stephens v West Australian Newspapers Ltd 182 CLR 211.
[2] Ibid.
[3] Ibid.
[4] ABC v Comalco Ltd (1986) 12 FCR 510.
[5] Adam v Ward [1917] AC 309.
[6] Boston v W S Bagshaw & Sons.
[7] Ibid.
[8] Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510
[9] Toogood v Spyring (1834) 149 ER 1044; ABC v Comalco Ltd (1986) 12 FCR 510.
[10] London Artists Ltd v Littler [1969] 2 QB 375.
[11] Bellino v ABC (1996) 185 CLR 183.
[12] Adam v Ward [1971] AC 309.
[13] Roberts v Bass [2002] HCA 57 at 79.
[14] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245.
[15] Odgers on Libel and Slander (5th ed., 1911).
[16] Pryke v Advertiser Newspapers Ltd (1983) 37 SASR 175.
[17] Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33.
[18] Kemsley v Foot [1952] AC 345
[19] Ibid.
[20] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245.
[21] Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35.
[22] Roberts v Bass [2002] HCA 57 at 76.
[23] Channel Seven Adelaide v Manock (2007) 232 CLR 245.
[24] Channel Seven Adelaide v Manock (2007) 232 CLR 245 (Gleeson CJ).