Balancing Artistic Expression and IP Rights: Comparing the European and Australian Legal Regimes

Jani McCutcheon, University of Western Australia Faculty of Law, is publishing Designs, Parody and Artistic Expression — A Comparative Perspective of Plesner v Louis Vuitton in 41 Monash University Law Review (October 2015). Here is the abstract.

This article examines the legal issues raised in Plesner v Louis Vuitton through a comparative Australian and European lens. It uses the case as a springboard to critically examine some important differences between the way that Australian and European design law responds to creative expression, some of which impact the Advisory Council on Intellectual Property’s current review of the Designs Act 2003 (Cth). In 2008, Dutch artist Nadia Plesner, created a drawing, Simple Living, depicting a malnourished African child holding a Louis Vuitton ‘Audra’ handbag and a miniature Chihuahua. Plesner sold T-shirts depicting Simple Living to support a campaign to raise awareness of the atrocities then occurring in Darfur. Relying exclusively on its European Community registered design for the pattern of the bag shown in Simple Living, in May 2008 and again in 2010, Louis Vuitton obtained ex parte injunctions prohibiting Plesner from selling products infringing the registered design. In 2011, Plesner successfully appealed against the latest injunction on the basis that her human right to free expression was more important than Louis Vuitton’s property rights. This article poses the question: how would this case have unfolded under the very different Australian legal and human rights frameworks? As it responds to that question, the article explores the important differences between the European and Australian registered design systems, and discusses issues of broader significance than the specific facts of Plesner, and which should be considered in the current reform inquiry. Of particular interest and focus is the novel question of whether Australian design rights, which are not balanced by an express defence of fair dealing nor any concept of ‘design use’ comparable to trade mark use, might be a forceful, if unintended, inhibitor of artistic, political or parodic expression which might otherwise be immune under copyright and trade mark law. These risks need to be considered in the current reform debates.

Download the article from SSRN at the link.