Was Louis Vuitton’s Use of Joan Mitchell’s Artworks Defensible?

We asked Jon Sharples, an Associate at London law firm Howard Kennedy LLP.

The Joan Mitchell Foundation (JMF) sent a cease-and-desist letter to Louis Vuitton on 21 February, alleging the luxury fashion brand used Mitchell's paintings in advertisements without their approval.

In a statement published to their website, JMF said they denied a 2022 request from Louis Vuitton to use Mitchell's works in an upcoming ad campaign 'in accordance with its longstanding policy that images of the artist's work be used only for educational purposes.'

JMF asserted that at least three works by Mitchell were used without authorisation: La Grande Vallée XIV (For A Little While) (1983), Quatuor II for Betsy Jolas (1976), and Edrita Fried (1981), all of which were loaned to Fondation Louis Vuitton in Paris for the duo-exhibition Monet–Mitchell from 5 October 2022 until 27 February 2023.

(The same two artists feature in the exhibition Monet/Mitchell: Painting the French Landscape at the Saint Louis Art Museum from 24 March to 25 June.)

Screenshots of Louis Vuitton's website published by the New York Times showed actress Léa Seydoux posing with a handbag in front of La Grande Vallée XIV (For a Little While). Louis Vuitton has since removed the images from their website.

We asked Jon Sharples, an Associate at London law firm Howard Kennedy LLP, to discuss possible defences for Louis Vuitton's actions.

Is there anything in the law that suggests Louis Vuitton could go ahead with their campaign despite repeated refusals from JMF?

Under English law there doesn't appear to be a compelling defence or exception to infringement that would apply here, based on what is known publicly about the matter.

It may be that people involved in the campaign mistakenly believed that because in each image probably no more than 20% of any given painting is shown, that is somehow okay. I am often asked if there is some kind of bright line, quantitative, percentage threshold up to which it is ok to borrow or take from another work, but there really isn't—the test is always whether a 'substantial' part of the work has been reproduced, which is a qualitative test and is therefore necessarily somewhat subjective and uncertain, which people can find a bit frustrating.

The other possibility is that the people involved might have believed that because the works are in the background then the copyright exception relating to 'incidental inclusion' might apply. This obviously isn't the case here though. If a shot in a film or photograph has been deliberately composed to make use of the graphic impact of an artwork in the background, that artwork cannot reasonably be said to have been only 'incidentally' included.

Might the appearance of the paintings in the backgrounds constitute 'fair use'?

In Europe, we don't have the broad concept of 'fair use' that is well known in U.S. law. Here we have a fixed list of things an artwork might be used for that might qualify as 'fair dealing'—things like criticism and review, parody, quotation, etc—but whether any specific use, even for one of those purposes, is actually considered 'fair' depends on a range of factors including the extent to which it interferes with the copyright holder's normal commercial exploitation of the work.

In this case, the use would be very unlikely to fit into one of the prescribed categories of dealing because they mostly require some kind of critical engagement with the meaning of the work, but even if that were present in, say, a purported commentary on the relationship between high art and luxury goods, this sort of use in commercial advertising, with or without the credit or acknowledgement that was missing in this case, would not be likely to get over the second hurdle related to fairness more generally.

Louis Vuitton doesn't own the Joan Mitchell paintings, but do the owners of works have the right to include them in their own images, including photos for personal use such as social media and commercial uses such as advertising and merchandise?

No, the ownership of a physical artwork does not give the owner of that artwork any right to use reproductions of that work in any way that is restricted by copyright. If an owner of an artwork wants a right to make commercial use of images of the work, they would need to acquire a licence from the artist—not only in relation to copyright, but also in relation to any suggestion that the artist endorses whatever is being advertised.

The New York Times included a screenshot of the ad on Louis Vuitton's website in their coverage of the story, which they credited simply as 'screenshot', implying they didn't receive explicit permission from Louis Vuitton or JMF. Were they within their rights to do so?

Being a U.S. organisation, I expect that The New York Times are relying on the U.S. 'fair use' doctrine mentioned above, given that they are using the screenshot for the purpose of reporting the story. —[O]