Yesterday morning, over coffee with a Milan-based artist, a dilemma came up - what to do with the aleXsandro Palombo Vs Cardi B legal brawl?
Let's analyse the case chronologically: in 2013 Italian artist aleXsandro Palombo did a parody series showing Marge Simpson dressed up in a selection of iconic Haute Couture designs, including the Versace safety pin dress made famous by Elizabeth Hurley, Madonna's infamous Jean Paul Gaultier bustier, Givenchy's little black dress as donned by Audrey Hepburn's "Breakfast In Tiffany's" and Thierry Mugler's iconic butt-bearing dress from his A/W 1995 collection. In Palombo's works, Marge stood in front of a brightly coloured wall with a framed image of the original celebrity wearing the dress that inspired the parody hanging behind her.
The gallery Palombo created was published on vogue.co.uk's site, but it wasn't authorized by The Simpsons' creator Matt Groening or by any fashion house involved. If, in that case, a fashion house or Groening would have thought Palombo was infringing in any way their copyright, the artist may have stated this was a parody, getting away with it (even though, at the same time, the image may have been deemed as misleading for consumers who may have thought this was an official collaboration...).
Now fast forward to Halloween 2022: rapper Cardi B, a well-known Mugler fan, posted on her social media a picture of her recreating the image of Marge in the Mugler's dress as parodied by Palombo. Her image was part of a slideshow that included Palombo's artwork and Mugler's picture. In the description the rapper just stated: "Mugler inspired".
The same slideshow was shared by the photographer Jora Frantzis, and Cardi B's stylist Kollin Carter. None of them mentioned the connection with Palombo.
The artist wrote to everybody involved asking to be credited in a remedial post and to include a link to his Instagram page. Frantzis stated she wasn't aware of the source of the Simpsons' image, but that he would be happy to add the credits, but the others remained silent. Left without receiving any further notifications, Palombo turned to a lawyer that stated Cardi B had misappropriated the artist's work for her October 31 post without adding the proper credit.
In a post on his Instagram page, Palombo added: "The original artwork with Marge Simpson wearing a Thierry Mugler dress that Cardi B published without credits, is a creation of artist aleXsandro Palombo and is part of the 'Marge Simpson Style Icon' series that the Italian artist created in 2013, with the intention of transforming Marge in a style icon; a work of reflection on women's emancipation and gender equality through the most iconic moments of the last 100 years in fashion costume. (sic) Cardi B and her collaborators have used my artwork without any authorization, debasing its original meaning and only to amplify their image with a clear commercial purpose that has nothing to do with that path of social awareness that has always characterized my works. (Extra)ordinary people are welcome to use my artworks images for personal and non-commercial purposes. To everyone else: Stop Stealing to Artists (sic)"
Now, while it may be legitimate from Palombo's point of view to be credited in Cardi B's post, it is actually his image that poses quite a few questions and more copyright infringements than Cardi B's reinterpretation.
Palombo may have indeed originally infringed three copyrights – Matt Groening's, the fashion houses' that created the dresses and, above all, the copyright of the photographers that took the pics inserted in the frame behind Marge (in the case of Mugler's design we have model Violetta Sanchez as photographed by Patrice Stable). If he had been sued by all of them, as stated above, he may have got away with it in the first two cases stating this was a parody, yet the copyright infringement of the photographer couldn't have been justified with a parody.
Cardi B may defend herself saying she was not aware of the fact that Marge's image wasn't made or approved by The Simpsons' creators/producers (in the post she says: "Mugler inspired"), this hypothesis opens another Pandora's box. If she indeed believed in good faith that this was an original Simpsons moment and that she was creating a parody of the famous animated series and not a parody of a parody (yes, this is getting twisted and complicated...), Palombo's image may be deemed capable of generating confusion in consumers who may think this was a fully authorized collaboration (after all, Balenciaga did an official collaboration with The Simpsons) rather than a parody.
The artist's lawyer, Claudio Volpi, who specializes in intellectual property law, issued a statement saying that Cardi B had "illegitimately appropriated the work of aleXsandro Palombo for mere business purposes in defiance of the most elementary rules on copyright and Instagram policies, with the consequent serious risks, both of compensation and of discredit for her public image."
Unfortunately for Palombo, Cardi B has just scored a win in court for copyright infringements: in October, the rapper won a lawsuit in which she was accused of using a man's tattoos for her album cover.
Five years ago Kevin Brophy Jr. of Los Angeles, filed a copyright infringement lawsuit against Cardi B for $5m, claimining his back tattoo (by artist Tim Hendricks) representing a tiger and a snake had been superimposed onto a male model performing oral sex on the cover of "Gangsta Bitch Music Vol 1".
The lawsuit went before a jury in an Orange County courtroom last month and it was revealed that, while looking for a tattoo to replace the one on the back of the model (that originally showed a cartoon animal with his finger in his mouth), the graphic designer found Brody's. A section of his tattoo was then overimposed on the Black model photographed on the album cover.
Brody stated in court that he found the cover "misleading, offensive, humiliating and provocatively sexual way." But Cardi B's lawyer pointed out that the man on the album cover is Black and with a full head of black hair, while Brody is a white man with a shaven head, so the cover couldn't be deemed as misleading. Besides, according to the rapper's lawyer, Brophy became linked to the cover only after he filed the lawsuit that was extensively covered by the media, and not before that. The embarrassment that the cover generated was therefore self-inflicted. At the end of the 4-day trial the jury ruled that Cardi B's mixtape album cover did not cast Kevin Brophy in a false light or constituted a misappropriation of his likeness.
In conclusion, there are cases such as Palombo's in which it is better to turn your luck around maybe complimenting the star that stole from you (without crediting you) what you stole from others. Lawfare may be a trendy word for 2022, as stated by the Collins Dictionary, but save your money to pay the bills rather than to start a legal procedure you may lose and that may attract the attention of powerful giants as well (in Palombo's case, the artist may have unwillingly attracted the attention of 20th Century Fox TV, producer of The Simpsons and owned by Disney, to his Simpsons parodies).
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