Commentary

Forever 21 Satirist Accused Of Infringement Says She'll Probably Kill Blog

Last year, blogger Rachel Kane created the blog WTForever21.com for the sole purpose of poking fun at the retailer's items. She proceeded to gleefully trash the merchandise.

"I wouldn't wear this on a DARE, let alone pay $25 for it and be SEEN wearing it up and down the land during my daily life," Kane wrote in the April post, "Uniformly Ugly," about a blue romper, adorned with ruffles down the front and an exposed zipper.

A $4.90 pair of dangly beaded earrings drew the following commentary: "Those bead curtains that provide no privacy and serve no other purpose than to get tangled around each other, or in your hair when you walk through them, came back from 1973 and decided to become earrings."

Those posts, like others on her blog, appear to have been illustrated with photos from the company's site.

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Forever 21 doesn't see the humor in the site. In April, the company sent Kane a letter accusing her of trademark infringement, based on her use of the company's brand in the blog's name, and copyright infringement, stemming from her use of the images on the Forever 21 Web site.

Despite the company's accusations, Kane's use of the Forever 21 name almost certainly is protected by the First Amendment. Kane isn't using the Forever 21 name in commerce, but to express opinions. Since she isn't selling clothing on her blog, the retailer can't legitimately argue that consumers might be confused. Besides, judges have repeatedly ruled that companies can't shut down speech they don't like by asserting trademark infringement.

As for the photos, Kane can argue that she makes fair use of them, but that issue could be fuzzier because one factor that goes into the analysis is how much of the original was used. People who use 100% often have a harder time arguing fair use; on the other hand, photos -- unlike, say, novels or news articles -- don't usually lend themselves to being excerpted.

Regardless, we might never know how courts would rule on this dispute. Though Kane initially refused to take her site down, she now says she'll probably remove it by the end of this week, according to the Village Voice. "It's really unfortunate, but I'll most likely be forced to take down the site, barring any serious deus ex machina. I don't have the resources (financial or otherwise) to take on a behemoth like Forever 21 over a little satire blog I love," she wrote.

1 comment about "Forever 21 Satirist Accused Of Infringement Says She'll Probably Kill Blog".
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  1. Kate Lafrance from Hartford Woman Online Magazine, June 6, 2011 at 7:36 p.m.

    Cool little blog - she should keep it up -

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