« Gourmet Spam | Main | Counterfeit Coffee Break 6 »

The Manolo's Guide to Holiday (Photo)Shopping

The Manolo and his elegantly shod readership have most graciously sent Counterfeit Chic a real turkey -- and not the tasty Thanksgiving variety. 

Yes, it's Steve Madden.  Again.  It seems that Mr. Madden, not content with pilfering Christian Louboutin's elegant shoe designs or signature red soles, may have turned to stealing photos of the master's shoes as well.  Compare Saks' picture of the Louboutin "Miss Fred Tacco" (left) with the Madden "Becks":

Which convinced you -- the identical patent leather reflections, the perfect camera angle, or perhaps the suspiciously similar shoelaces?  Although the background and red soles appear to have been erased, you are presumably not fooled by the many-colored wonders of Photoshop -- and nor is the law.

Steve Madden Becks in blue, red, and cognac

True, M. Louboutin's talented hands are probably tied, at least with respect to intellectual property law.  U.S. law does not protect his designs, and while he has applied for a trademark on his red soles, Steve Madden has finally learned not to copy that presumably protectable element. 

U.S. copyright law, however, has a thing or two to say about commercial misuse of a photo.  Assuming that the Becks shot is merely an unauthorized, altered version of Miss Fred Tacco's best angle, the owner of the copyright in the photo has a cause of action against Steve Madden.  That copyright holder could be the original photographer, or Saks Fifth Avenue, or even Christian Louboutin himself in the unlikely event that he supplied the photo. 

The fact that an image has been substantially changed does not eliminate the the cause of action in copyright; it merely turns the offending imitation from an unauthorized copy into an unauthorized derivative work.  And while copyright law includes substantial provisions for fair use, no lawyer who can spell "copyright" (that's "right," not "write" or "rite") would argue that taking one online catalog photo for use in another catalog fits the criteria. 

But what if the photographer were a freelancer who cleverly kept the copyright in the photo and licensed its use to both Saks and Steve Madden?  In that unusual scenario, there would be no cause of action in copyright.  It could still be considered fraudulent, however, to picture one item for sale and then substitute another.  As the Manolo muses, "this leaves the Manolo wondering exactly what the Becks looks like."  Not, of course, that our fashionable friend has any intention of finding out.

Bottom line:  Christian Louboutin cannot stop Steve Madden from copying his coveted designs.  Yet.  But the mere click of a shutter created an image that has infinitely more legal protection that the pictured shoe itself, and the copyright holder may not appreciate its reappearance elsewhere.  Moreover, it's not nice to fool potential customers with false representations of the goods.  So, legally speaking, Steve Madden may have stepped in it once again -- and his lawyers had better put down their Thanksgiving forks and pick up their pens. 

Many thanks to His Superfabulousness for sending the link, and to eloquent reader Victor Ramirez for asking Counterfeit Chic to comment on such "tomfoolery."

P.S.  Here's yet another example of Steve Madden's "admiration" for Christian Louboutin -- is there such a thing as a design stalker? 

Christian Louboutin created "Emily" exclusively for RM's online runway show at Net-a-Porter.  It hasn't yet shipped, but it's also for pre-order as Steve Madden's "Chap" (with color variations).