MSCHF is a Brooklyn based art collective that has gained Internet stardom through controversial “drops” that remix pop culture and brands. (I had a lot of fun browsing through their latest drops, one of which includes the option to purchase paper shopping bags from luxury brands, aptly named “OnlyBags” so that purchasers can “flex”).
Last year, Nike filed a lawsuit against MSCHF’s “Satan Shoe”, which were modified versions of Nike’s Air Max 97 shoes. The refigured shoes featured a bronze pentagram, and reportedly, a drop of human blood.
Nike successfully argued that its trademarks (the Nike swoosh and word mark) were infringed. Many Nike consumers were threatening to boycott the brand, believing that Nike was selling the shoes. MSCHF argued that the shoes were protected under fair use, since it was a “humorous form of social commentary and criticism.” MSCHF also argued the first-sale doctrine, an American doctrine that states that a purchaser can rent, give away, sell, or destroy their copy as long as it does not infringe on the copyright owner’s exclusive rights. The case was settled out of court.[1]
More recently, the sneaker brand Vans filed a lawsuit against MSCHF for its “Wavy Baby” sneaker, which Vans claims infringes trademarks in its OLD SKOOL shoe.[2]
In a statement, MSCHF states that it is the name of the game to riff on existing designs in the sneaker world (see also, Everything is a Remix).
MSCHF states: “Sneaker companies are in a constant cycle of riffing on each other… Standard shoe industry practice is: steal a sole, steal an upper, change a symbol. What a boring use of cultural material… Fundamentally, artists play with culture. Sampling is a core act of creative expression, and a constant iterative process across the entire fashion space.”[3]
MSCHF also argues that it helped bring more attention to Vans, which it described as “a hidebound institution hiding behind its past heritage … In 50 years of sneaker releases, never have any of their shoes gotten this much attention pre-release.”[3]
MSCHF welcomes controversy – for example, in the Cease and Desist Grand Prix, customers can purchase a racing shirt bearing the logo of one of eight major companies. If the shirt purchased bears the logo of the company that is the first of the eight to send a cease and desist letter (for trademark infringement), the purchasers of that shirt will win a prize.[4]
Copyright law is a balancing act between promoting public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (Theberge). While protecting the rights of the creator, copyright law must not stifle innovation and creativity, and MSCHF argues that its artists are engaging in creative expression.
MSCHF raises a lot of interesting questions.
For example, when do their drops cease to be a cultural commentary and start to become copyright or trademark infringement? For example, if the Wavy Shoes are mass produced and sold broadly, does it look less like creative expression and more like a shoe manufacturer selling products that infringe trademark under the cover of creative expression? And if someone is walking around with a Satan Shoe or a Wavy Baby in your neighbourhood, would you know that it’s MSCHF and not Nike or Vans?
Interested to know your thoughts!
[1] https://www.mcneeslaw.com/intellectual-property-2021-review/
[2] https://www.thefashionlaw.com/vans-is-suing-mschf-over-allegedly-infringing-wavy-baby-sneakers/
Communications Law