A MSCHF-ious take on Copyright, Fair Use and Appropriation

March 14, 2024

By Atreya Mathur

​​In a world where creativity knows no bounds and the lines between art, inspiration and infringement blur, one art collective stands at the forefront of pushing these boundaries. From crowd-sourcing and domain squatting websites for the next U.S. president to a frame-by-frame recreation of the entire Bee movie, MSCHF is redefining what it means to challenge norms of traditional art and law.^[1] With antics including a “Ketchup or Makeup” art drop in collaboration with Rihanna’s Fenty Beauty brand or a series of fake Andy Warhols amidst an original, this art collective is certainly causing a bit of MSCHF and testing the extent of creativity in art and the seriousness of law.

Through a blend of parody, fair use, and keen societal commentary, MSCHF, a collective known for its provocative and often controversial projects, has carved out a unique space in the art world, sparking discussions on the limits of creativity, ownership, and free speech.^[2] In the realm of appropriation art, artists remix, repurpose, and reimagine existing works to create something new. Amidst the celebration of cultural remixing and transformative use, a paradox also emerges: the challenge of hypocrisy when artists who engage in appropriation themselves become embroiled in legal battles over copyright infringement. From its controversial collaborations to its legal skirmishes with corporate giants, MSCHF’s journey exemplifies the complexities and contradictions inherent in the intersection of art and copyright law.

This article looks into the innovative approaches employed by MSCHF to navigate legal constraints while producing thought-provoking and socially relevant art. By examining key projects and legal challenges faced by MSCHF, the article aims to shed light on the evolving intersection of art, copyright law, and freedom of expression and the issue of who sues whom and when?

 

Who is MSCHF and what is their creative philosophy?

MSCHF, which stands for “miscellaneous mischief,”^[3] is a privately-held, for-profit art and media company, founded in 2016 by Gabriel Whaley and headquartered in Brooklyn, New York. Whaley is the son of a former military officer and previously worked for Buzzfeed.^[4] Following Buzzfeed’s closure, Whaley embarked on his own entrepreneurial endeavor and his initial project involved selling seemingly bad advice for $1 on Twitter, which unexpectedly gained viral traction.^[5] Subsequently, in 2016, with a company called Casper, he launched “Late Night Snap Hacks,” a website to “fake a social life” and trick friends into thinking that one is out partying, when they are actually cozily tucked in bed at home, which also garnered significant attention.^[6] In 2019, Lukas Bentel and Kevin Wiesner joined MSCHF as Chief Creative Officers.

MSCHF describes themselves as a “new type of venture studio” that blends art, technology, and commerce, and markets themselves as an “art collective” with approximately 20 artists, who poke fun at contemporary trends and ride on the wave of controversy.^[7] The company operates on a limited-edition drop model,^[8] involving the release of a new product or experience every two weeks. Each drop is designed to create buzz and generate social media attention with an “exclusive” feel to their limited edition products.^[9] Their business model relies on generating buzz and viral marketing, as opposed to traditional advertising. They also sell their products at a premium price point to collectors and fans, and often donate a portion of the proceeds to charity.^[10]

At the heart of MSCHF’s ethos lies a commitment to experimentation and subversion.^[11] Rather than conforming to traditional artistic norms, MSCHF seeks to disrupt and challenge established conventions through its work.^[12] Parody serves as a cornerstone of MSCHF’s artistic toolkit, allowing the collective to critique and satirize cultural phenomena while leveraging legal protections under fair use.^[13] By cleverly remixing existing cultural artifacts, MSCHF blurs the lines between original creation and transformative commentary. However, the use of parody in the context of commercial products, such as the “Satan Shoes,” which will be discussed in further detail later, raises questions about the limits of fair use and the potential for trademark infringement.^[14]

In another drop, MSCHF created the Global Supply Chain Telephone Handbag that combines elements from famous luxury brands like Birkin, Celine, Dior, and Balenciaga. The process involved engaging factories in different countries to imitate and merge aspects of these designer bags, resulting in a unique product.^[15] “We deliberately gave vague, incomplete, and ‘bad’ instructions to these factories to leave as much of the decision-making as possible out of our hands,” MSCHF stated.^[16] With the Global Supply Chain Telephone handbag, MSCHF aims not to mock the fashion industry but to bring attention to the often overlooked labor that supports it. While fashion collections typically bear the name of a single creative director, the reality MSCHF strives to highlight is that the work involves the contributions of numerous craftspeople, often numbering in the tens or even hundreds.

MSCHF initiated the creation process by commissioning a factory in Peru to produce a replica of a Birkin bag. Using this sample, they approached a factory in Portugal and requested adjustments to infuse elements reminiscent of Celine, providing a vague image of the brand’s Luggage bag for reference. This iterative process continued in countries like India and China, each factory adding its own interpretation and modifications along the way.^[17] Wiesner stated, “One thing we’re always so amazed by is the creativity that comes out of the half of the process when producing an object [in a factory]. They are creative problem-solving. This project is about protagonising them.”^[18]

From a legal standpoint, several potential concerns arise: the handbag likely incorporates design elements, trademarks, and possibly patents owned by the original luxury brands. This raises issues of trademark infringement, copyright infringement, and potentially design patent infringement. By intentionally imitating and combining features of well-known luxury bags, MSCHF’s creation could potentially be seen as a form of counterfeiting, which could lead to legal action from the affected brands.

Consumers might also be misled into believing that the handbag is an authentic product endorsed by the original luxury brands, which could result in claims of false endorsement or false advertising. Further, engaging factories in different countries adds a layer of complexity to the legal implications, as each country may have its own laws and regulations regarding intellectual property rights and unfair competition. MSCHF’s handbag may be an innovative and provocative artistic statement, but also raises significant legal risks due to its potential infringement on the intellectual property rights of the original luxury brands involved.^[19]

The handbag project may also be interpreted as an artistic statement challenging the notions of consumerism, brand worship, and the exclusivity of luxury goods, based on the themes of MSCHF’s previous drops. Perhaps by combining elements from multiple luxury brands into a single product, MSCHF could also be making a statement about the interchangeable nature of brand identities in contemporary consumer culture. The act of merging different design elements from iconic luxury brands could in itself be a creative endeavor, showcasing the artist’s ability to deconstruct and reinterpret established symbols of wealth and luxury. Further, as a limited-edition art object, the handbag holds value beyond its material components. It becomes a conversation piece and a collector’s item, appealing to individuals who are interested in art and cultural commentary.

Finally, consumers may choose to purchase the handbag as a way to support MSCHF’s brand and its mission rather than the original luxury brands. MSCHF has cultivated a distinct identity and following, having consumers wanting to participate in the culture and its supporters may be more interested in owning a piece from the company known for its bold and provocative projects with its association to labor rather than the actual brands that it copied.

View all of MSCHFs drops HERE.

Navigating the legal challenges at MSCHF

MSCHF’s boundary-pushing projects, like the handbag, have often resulted in legal showdowns, particularly with corporate entities protective of their intellectual property rights.

As a backdrop, the ‘Jesus Shoes’ were a customized version of the Nike Air Max 97 sneakers created by MSCHF. Released in 2019, these sneakers garnered significant attention for their unique design and concept. The shoes were filled with holy water sourced from the Jordan River and adorned with religious symbols, including a miniature crucifix and the inscription “MT. 14:25,” referencing the biblical passage describing Jesus walking on water.^[20] Despite not being endorsed or made by Nike, the Jesus Shoes gained popularity and were worn by celebrities like Drake. The project aimed to provoke thought and commentary on the intersection of religion, consumerism, and popular culture.^[21]

Following the success of the Jesus Shoes, MSCHF released a follow-up project known as the ‘Satan Shoes.’ These customized Nike Air Max 97 sneakers were created in collaboration with rapper Lil Nas X and featured provocative design elements, including a drop of genuine human blood, an upside-down cross, and a Pentagram charm.^[22] Released in conjunction with Lil Nas X’s music video for his song “Montero (Call Me By Your Name),” which featured themes of religious imagery and LGBTQ+ empowerment, the Satan Shoes sparked controversy and backlash from religious and conservative groups. The project aimed to challenge societal norms and provoke discourse on issues of religion, identity, and artistic expression.^[23] However, the release of the Satan Shoes also led to legal action from Nike, who filed a lawsuit against MSCHF for trademark infringement and dilution, among other claims.

Nike, Inc. v. MSCHF (2021)

As mentioned above, MSCHF collaborated with musician Lil Nas X to create the “Satan Shoes,” which were customized Nike Air Max 97s featuring controversial religious imagery and a drop of human blood in the soles. Despite the presence of Nike’s trademarked swoosh on the shoes, Nike did not initially take legal action against MSCHF for their previous Jesus Shoes. The Satan Shoes quickly attracted widespread negative attention, leading Nike to file a lawsuit against MSCHF for trademark infringement, dilution, and unfair competition.^[24] MSCHF responded by leveraging the legal action for commentary and commerce, releasing a “Legal Fees” t-shirt displaying Nike’s legal complaint with drawn-on devil horns.^[25] Nike obtained a temporary restraining order March 31, 2021, and the case settled quickly thereafter, leaving unanswered questions about potential legal defenses such as the first sale doctrine and fair use.^[26]

Photo: Original Nike Airs versus Satan Shoes from the Complaint against MSCHF and Statement issued by MSCHF to purchasers of the Satan Shoes

Nike’s decision to file a lawsuit against MSCHF for trademark infringement and dilution, false designation of origin, and unfair competition regarding the “Satan Shoes” raises questions about the company’s motivations and strategic considerations. Unlike its reaction to the “Jesus Shoes” released by MSCHF in 2019, Nike swiftly distanced itself from the “Satan Shoes” and took legal action to protect its brand image and trademarks. The key distinction between the “Jesus Shoes” and the “Satan Shoes” lies in the potential for consumer confusion and negative perception.^[27] While the “Jesus Shoes” garnered attention for their innovative design and cultural commentary, they did not elicit the same level of controversy or backlash as the “Satan Shoes.” The satanic imagery and provocative themes associated with the latter sparked outrage among religious and conservative groups, leading to calls for a Nike boycott and public condemnation of the project.^[28] The combination of the shoes and the music video launched by Lil Nas X intensified the controversy surrounding both projects, further complicating Nike’s position and underscoring the broader cultural significance of the collaboration.^[29]

MSCHF employed legal defenses such as citing the First Sale Doctrine and claiming the shoes are protected as parody.^[30] However, Nike’s rejection of these defenses and its pursuit of legal action signal the seriousness of the situation and the potential consequences for both parties involved. Nike’s decision to pursue legal action not only against the “Satan Shoes” but also against any potential future “parody” shoes underscores the company’s commitment to protecting its brand integrity and trademarks.^[31] Nike also reserved the right to amend its complaint to add allegations of infringement against MSCHF’s sale of the Jesus Shoes.^[32] This indicates that while Nike initially focused its legal action on the Satan Shoes due to their controversial nature and potential negative impact on the brand, the company retained the option to expand the scope of the lawsuit to include the Jesus Shoes if deemed necessary.

Vans, Inc. v. MSCHF (2023)

Vans, a renowned brand in skateboarding and streetwear, filed a lawsuit against MSCHF, over the Wavy Baby sneakers, which was inspired by Vans’ iconic Old Skool design. MSCHF created the Wavy Baby sneakers by distorting a photograph of Vans’ Old Skool shoe through a digital filter, resulting in a wavy-soled design.^[33] MSCHF claimed that the Wavy Baby shoes were a parody, critiquing the practice of sneaker companies copying each other’s designs. Vans sent a cease and desist letter to MSCHF, alleging trademark infringement and dilution due to the Wavy Baby shoe’s distorted design elements and use of Vans’ trademarks.^[34] Despite the letter, MSCHF proceeded with the release of the Wavy Baby shoe, leading Vans to file a lawsuit seeking a temporary restraining order and preliminary injunction. It is interesting to note that MSCHF released a statement on Vans reaching out to them before the shoes dropped, including Vans expressing their interest for future collaborations as well as profits from the Wavy Baby shoes and four pairs for themselves, leading one to think that is not only about the shoes.^[35]

Ultimately, the district court ruled in favor of Vans, granting the temporary restraining order and preliminary injunction. The court found that Vans was likely to succeed on the merits of its trademark infringement claim and that the Wavy Baby shoe caused consumer confusion. MSCHF was ordered to escrow all revenues from the sales of the Wavy Baby shoe to ensure funds for potential damages. MSCHF appealed the district court’s decision to the U.S. Court of Appeals for the Second Circuit, raising arguments related to First Amendment protection, prior restraint of speech, and the escrow requirement.^[36] The Second Circuit upheld Vans’s victory, ruling that the Wavy Baby shoe did not receive heightened First Amendment protections as it caused consumer confusion and failed to clearly distinguish itself from Vans’s original brand.^[37]

Legal issues observed in MSCHF lawsuits

The First Sale Doctrine: This doctrine presents a significant legal consideration for MSCHF and its production of customized items like the Satan Shoes. It allows individuals who purchase copyrighted items the right to resell them without explicit permission from the creator.^[38] It’s a legal principle that enables artists, such as MSCHF, to repurpose copyrighted products and express their creativity while potentially profiting from their creations.^[39] MSCHF’s practice of customizing Nike shoes and reselling them aligns with the First Sale Doctrine, a concept well-recognized in the sneaker culture community. Many artists and designers modify sneakers with custom artwork and sell them at higher prices, with Nike often turning a blind eye to these activities due to the vibrant sneaker culture surrounding their brand. However, the issue arises when the customized items are mass-produced, as was the case with the Satan Shoes. While individual works of art are typically easier to defend in court, the mass production of the Satan Shoes raises concerns about potential trademark infringement and dilution.^[40] Nike could argue that the sale of these shoes misled consumers into believing they were authorized or endorsed by Nike, thereby harming the company’s reputation by associating its brand with Satanic symbols.

Copyright Infringement: MSCHF projects sometimes incorporate copyrighted material without permission, which can lead to lawsuits from copyright holders. While some argue that their use of copyrighted material falls under fair use or parody exceptions, courts may still need to evaluate whether the use is transformative enough to warrant protection.

Parody Defense: MSCHF often relies on the defense of parody for its projects, claiming that their works are satirical commentary protected by the First Amendment. However, whether a particular project qualifies as parody or satire can be subjective and may require legal interpretation.

Trademark Issues: MSCHF’s use of trademarks, logos, and brand names in their projects can raise concerns about trademark infringement. While parody is a recognized defense against trademark claims, courts may still assess whether the use of trademarks creates confusion or dilutes the original brand’s value.

Consumer Perception: Despite legal challenges, MSCHF’s projects often garner significant attention and demand, leading some to question the effectiveness of lawsuits against the company. The controversial nature of their creations may even enhance their market value, as consumers are drawn to the brand for its edgy and unconventional reputation.

Lawsuits against MSCHF involve complex legal issues surrounding copyright, parody, trademark, and consumer perception. While some argue that legal action is necessary to protect intellectual property rights, others question the efficacy of such lawsuits given the brand’s ability to capitalize on controversy and demand. Ultimately, the outcome of these legal battles may depend on how courts balance the rights of creators, the interests of copyright holders, and the principles of free expression.

MSCHFs view on the law through amicus briefs

MSCHF filed an amicus curiae brief in support of VIP Products, a company involved in a trademark dispute.^[41] VIP Products, a company known for producing dog toys, was involved in a legal dispute with Jack Daniel’s Properties, the owner of the Jack Daniel’s whiskey brand. The lawsuit centered around VIP Products’ creation of a dog toy called the “Bad Spaniels Silly Squeaker,” which was designed to resemble a Jack Daniel’s whiskey bottle.^[42] The amicus curiae brief filing by MSCHF for the case, initially rejected by the court and later corrected, combines legal arguments with elements of satire and artistic expression. While the filing includes legal arguments common to other amicus briefs, such as highlighting examples of trademark appropriation in advertising, it also incorporates humor and satire. MSCHF suggests that the Justices and their clerks should begin by “turning to the Appendix,” which contains a connect-the-dots contest.^[43] Each page of the Appendix is specifically addressed to a reader of the brief, inviting them to complete a connect-the-dots drawing and return it to MSCHF for an exhibition.^[44]

The connect-the-dots drawings, while amusing, also make a point about the intersection of trademark and artistic expression. They incorporate well-known trademarks in a playful manner, highlighting the potential legal implications of using trademarked imagery in art. MSCHF also filed a separate motion asking for permission to send colored pencils to the Justices and clerks for their participation in the contest.^[45]

Overall, the amicus curiae brief filed by MSCHF combines legal arguments with humor and creativity, challenging the court to consider the broader implications of trademark laws on freedom of expression. While it remains to be seen how the court will respond, the brief sparks conversation about the boundaries of artistic expression and the role of trademark law in regulating creative works.

Appropriation and infringement of MSCHF products

MSCHF has had several ‘drops’ of different artworks and collaborations that have all managed to garner the interest and amusement of the public. One example is the Severed Spots drop in April 2020, in which MSCHF cut up a Damien Hirst spot painting and sold each spot for $480 apiece.^[46] The claimed purpose was to criticize the practice of investors pooling resources to buy art, each gaining fractionalized ownership and then flipping the work. Hirst never acknowledged the drop or brought any legal claim, but arguably, he could have.^[47] While Hirst did not take legal action in this case, it does not necessarily establish a precedent that would exempt similar actions from legal consequences in the future.

 

Another example, after acquiring a 1954 Andy Warhol drawing entitled “Faeries,” valued at approximately $20,000, MSCHF proceeded to produce 999 counterfeit replicas, all priced at $250.^[48] The intention of which was to sell them alongside the authentic original under the project “Museum of Forgeries” launched in October 2021. By intentionally obscuring the distinction between the genuine and counterfeit editions, MSCHF created a scenario fraught with ambiguity regarding the authenticity of each piece. Their process involved utilizing a robotic arm to replicate Warhol’s pen strokes and employing an artificial aging process to mimic the appearance of the original artwork. The drops conducted by MSCHF once again serve as a commentary on society and consumerism. By flooding the market with nearly identical copies of a valuable artwork, they challenge notions of authenticity and value in the art world. This action prompts reflection on the nature of consumerism, questioning the significance individuals place on owning a genuine item versus a meticulously crafted replica.

From a legal standpoint, fair use is a complex doctrine that permits certain uses of copyrighted material without the need for permission from or payment to the copyright holder. However, fair use typically applies to purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. While MSCHF’s actions may indeed be seen as a form of artistic commentary or critique on consumerism, whether they would qualify for fair use protection would ultimately depend on various factors, including the purpose and character of their use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work. Furthermore, there are legal considerations beyond copyright law to keep in mind, including trademark infringement, fraud, deceptive trade practices, and potential violations of consumer protection laws. While fair use may provide some defense in certain circumstances, it does not exempt individuals or entities from liability for other legal claims that may arise from their actions.

Another lighter drop from MSCHF was a satirical jab at the extensive measures massive corporations undertake to safeguard their logos. Frequently, major brands like Coca-Cola, Walmart, and Starbucks are quick to send cease and desist notices to individuals or entities that incorporate their trademarks, whether intentionally or inadvertently. In a playful response to this trend, MSCHF unveiled a webpage titled “C&D Grand Prix,” on January 24, 2022 where they offered F1-inspired racing jackets adorned with the illustrious logos of Disney, Amazon, Subway, Coca-Cola, Walmart, Tesla, Starbucks, and Microsoft. Each jacket was priced at $60, but there was a twist: the purchaser of the jacket featuring the logo of the first brand to send MSCHF a cease and desist letter would receive a hat emblazoned with MSCHF’s own logo—an ironic nod to the cycle of legal notices.^[49]

The webpage now explains the story and thought process behind it, revealing that Subway was the first to file the cease and desist and also nudges users to “provoke” the other companies to file the same against them. Subway’s response did not disappoint.

In a swift response, on the same day as the C&D Grand Prix drop, Subway cleverly responded to MSCHF’s infringing use of its logo by tweeting a picture of a t-shirt featuring MSCHF’s logo and Subway’s color scheme, captioned with playful remarks challenging MSCHF. Subway then issued a cease and desist letter on January 26, 2022, adopting a similar tone as MSCHF’s branding. Subway’s strategic move ended the infringement, positioning Subway as a ‘relatable hero’ and pleasing consumers with promised hats. Overall, the episode resulted in MSCHF gaining attention, Subway protecting its intellectual property, consumers receiving hats, and everyone enjoying an amusing exchange that they got to be a part of.

Now, while MSCHF has faced legal challenges over its projects, it’s also been influential, inspiring imitation and commentary from various individuals and entities. Some artists and creators have been inspired by MSCHF’s projects and have produced their own parodies or homages, as Subway created with the C&D Grand Prix shirt. These works may emulate or reference elements of MSCHF’s projects while adding new interpretations or commentary. While not necessarily infringing on MSCHF’s intellectual property rights, these works reflect the impact and cultural relevance of MSCHF’s creations just as MSCHF paid homage or parodied the work of others. Given the attention and demand for MSCHF’s limited-edition drops, it’s also possible that unauthorized individuals or entities have attempted to produce counterfeit versions of MSCHF’s products. Counterfeiters may seek to profit from the popularity of MSCHF’s work by producing and selling unauthorized replicas, potentially infringing on MSCHF’s trademarks and copyrights.

 

Taking the MSCHF Big Red Boot as an example, the boots represent a departure from conventional footwear design and feature a bulbous silhouette reminiscent of the iconic footwear worn by Osamu Tezuka’s Astro Boy character. MSCHF co-founder Daniel Greenberg describes the Big Red Boot as a “cartoonish abstraction of a shoe,” drawing inspiration from the simplified forms often found in cartoons to convey the idea of a boot in an absurd and exaggerated manner.^[50] However, of course, due to legal reasons, MSCHF does not explicitly reference Astro Boy in its marketing of the boots.^[51]

Released in February 2023 for $350, the boots stood out not only for their unique design but also for their technical innovation—constructed using a single-mold-shell and high-quality materials. Greenberg emphasized that experimentation and diversity were integral to the brand’s ethos.^[52] The boots received acclaim and also backlash for how similar it was to Astro-Boy and cartoon culture and ripping off the cartoon.^[53] The boots were adorned by several celebrities, including Ciara, Lil Wayne and Seth Rollins, among others, and had people wanting to participate in MSCHF’s take on sneaker and cartoon culture but also invoked copies and dupes of the shoes due to the limited inventory of the MSCHF sneakers and their price. Can MSCHF sue others for creating these copies or works so similar to MSCHFs? Even if they are able to sue, should they?

Does MSCHF have a case? Hypocrisy in filing lawsuits for infringement: Do I sue you for infringing my art that I took from somewhere else?

The issue of hypocrisy in the realm of art and copyright infringement is a complex and fascinating one: it often arises when artists or collectives who themselves engage in appropriation or borrowing from existing works find themselves on the receiving end of legal action for similar practices. This creates a tension between the desire to protect one’s own creative output and the acknowledgment of the transformative nature of artistic expression. When artists or collectives who are known for appropriating or remixing existing works face legal challenges for copyright infringement, it can be seen as hypocritical if they have previously defended their own actions as legitimate forms of artistic expression. This paradox raises questions about consistency in applying principles of fair use and transformative use.

In some cases, artists or collectives may selectively enforce copyright claims, targeting others for infringement while expecting leeway for their own creative practices. This selective enforcement can be perceived as unfair and undermines the principles of equity and consistency in copyright law. The prevalence of appropriation art and remix culture challenges traditional notions of originality and authorship. In a landscape where cultural references are constantly recycled and recontextualized, the lines between inspiration, homage, and infringement can become blurred.

Legal battles over copyright infringement in the art world can set important precedents that shape future interpretations of fair use and transformative use. When artists or collectives involved in appropriation art are sued, the outcomes of these cases have implications for the broader creative community. Artists and collectives must navigate complex ethical dilemmas when borrowing from existing works. While they may argue for the importance of cultural commentary and freedom of expression, they must also consider the rights of original creators and the potential impact of their actions on the wider artistic ecosystem.

Overall, the issue of hypocrisy in art and copyright infringement underscores the complexities of balancing creative freedom with respect for intellectual property rights. It prompts important discussions about the evolving nature of artistic practices, the role of copyright law in fostering innovation, and the ethical responsibilities of artists in a digital age characterized by constant cultural exchange and appropriation. As MSCHF continues to push the boundaries of creative expression and challenge established norms, it confronts the complexities of navigating legal constraints while maintaining its commitment to artistic integrity. The collective’s role in the hypocrisy paradox serves as a potent reminder of the nuanced relationship between art, copyright law, and ethical responsibility in the contemporary cultural landscape and it is interesting to think of any action they may take on others who use their work or are inspired by their work or build on their work.

Conclusion

The legal battles waged by MSCHF have broader implications for fair use and appropriation art, which rely on the transformative use of existing works to convey new meanings. As courts grapple with balancing the rights of creators and copyright holders, the outcomes of cases involving MSCHF could shape the future of artistic expression and cultural commentary, as well as fashion and design. MSCHF’s unapologetic approach to art challenges one to reconsider the boundaries of creativity and legality in the world of art and copyright law. By pushing the limits of parody, fair use, and societal critique, MSCHF forces one to engage in (somewhat meaningful) dialogue about the nature of art, ownership, and free expression. More than anything, whether people seem to love or hate the products, it gets them involved, it gets them talking and gets them wanting to be part of something and contribute to the MSCHF of it all.

Suggested Readings

• View all of MSCHFs drops on their website or HERE.
• Podcast with CEO and Founder of MSCHF, Gabe Whaley, prehype, available at https://prehype.simplecast.com/episodes/selling-head-less-swans-and-other-stuff-on-the-internet-a-talk-with-mr-mschf
• Rachel Burns, How an Art Collective’s Gimmicks Could Clarify the Boundary Between First Amendment Rights and Trademark Protections, JIPEL (Nov. 9, 2022), available at https://jipel.law.nyu.edu/how-an-art-collectives-gimmicks-could-clarify-the-boundary-between-first-amendment-rights-and-trademark-protections/
• Sanam Yar, The Store of MSCHF, a Very Modern . . . Business?, New York Times, available at https://www.nytimes.com/2020/01/30/style/MSCHF-sneakers-culture.html

About the Author

Atreya Mathur is the Director of Legal Research at the Center for Art Law. She was the inaugural Judith Bresler Fellow at the Center (2021-22) and earned her Master of Laws from New York University’s School of Law where she specialized in Competition, Innovation, and Information Laws, with a focus on copyright, intellectual property, and art law.

Sources:

1. Domain squatting, also known as cybersquatting, refers to the practice of registering, trafficking in, or using an Internet domain name with the intent of profiting from the goodwill of someone else’s trademark, see more at https://www.godaddy.com/resources/skills/what-is-domain-squatting-and-what-can-you-do-about-it ↑
2. Riccardo Zazzini, MSCHF: EVERYTHING YOU EVER WANTED TO KNOW ABOUT THE ART COLLECTIVE (2023), Highsnobiety, available at https://www.highsnobiety.com/p/mschf-art-collective/ ↑
3. Id. ↑
4. Id. ↑
5. Id. ↑
6. Id. ↑
7. See Gabe Whaley, available at https://www.unlockherpotential.com/mentor/gabe-whaley ↑
8. See MSCHF, available at https://system.privco.com/company/mschf-product-studio ↑
9. Id. ↑
10. Id. ↑
11. Riccardo Zazzini, MSCHF: EVERYTHING YOU EVER WANTED TO KNOW ABOUT THE ART COLLECTIVE (2023), Highsnobiety, available at https://www.highsnobiety.com/p/mschf-art-collective/ ↑
12. Id. ↑
13. R. Gordon Wright, et. al., Parody Sneaker Afforded No First Amendment Protection Against Vans’ Trademark Infringement Claims (Feb. 1, 2024), Finnegan, available at https://www.finnegan.com/en/insights/blogs/incontestable/parody-sneaker-afforded-no-first-amendment-protection-against-vans-trademark-infringement-claims.html#:~:text=The%20Second%20Circuit%20found%20that,if%20the%20mark%20is%20used%20‘ ↑
14. Id. ↑
15. Matthew Burgos, MSCHF launches leather handbag that combines designs of Hermès, dior, balenciaga & celine (Feb. 12, 2024), designboom, available at https://www.designboom.com/design/mschf-leather-handbag-global-supply-chain-telephone-hermes-dior-balenciaga-celine-02-12-2024/ ↑
16. Id. ↑
17. Id. ↑
18. Lauren Cochrane, The latest It-bag is a joke … Inside the wacky world of MSCHF (Feb. 12, 2024), the Guardian, available at https://www.theguardian.com/fashion/2024/feb/12/the-latest-it-bag-is-a-joke-inside-the-wacky-world-of-mschf ↑
19. Matthew Burgos, MSCHF launches leather handbag that combines designs of Hermès, dior, balenciaga & celine (Feb. 12, 2024), designboom, available at https://www.designboom.com/design/mschf-leather-handbag-global-supply-chain-telephone-hermes-dior-balenciaga-celine-02-12-2024/ ↑
20. Riccardo Zazzini, MSCHF: EVERYTHING YOU EVER WANTED TO KNOW ABOUT THE ART COLLECTIVE (2023), Highsnobiety, available at https://www.highsnobiety.com/p/mschf-art-collective/ ↑
21. Maya Ernest, Why did Nike sue over the ‘Satan Shoes’ but not ‘Jesus Shoes’? (Apr. 1, 2021) Inverse, available at https://www.inverse.com/input/style/nike-satan-shoes-lawsuit-lil-nas-x-mschf-jesus-shoes ↑
22. Id. ↑
23. Id. ↑
24. Nike, Inc. v. MSCHF Prod. Studio, Inc., No. 21-cv-1679, 2021 WL 1201086 (E.D.N.Y. Mar. 29, 2021). ↑
25. Edgar Alvarez Barajas, MSCHF is teasing a ‘Legal Fees’ shirt after Nike announces lawsuit, Input, available at https://www.inverse.com/input/style/nike-suing-mschf-over-lil-nas-x-satan-shoes-lawsuit ↑
26. Nike, Inc. v. MSCHF Prod. Studio, Inc., No. 21-cv-1679, 2021 WL 1201086 (E.D.N.Y. Mar. 29, 2021). ↑
27. Maya Ernest, Why did Nike sue over the ‘Satan Shoes’ but not ‘Jesus Shoes’? (Apr. 1, 2021) Inverse, available at https://www.inverse.com/input/style/nike-satan-shoes-lawsuit-lil-nas-x-mschf-jesus-shoes ↑
28. Id. ↑
29. Id. ↑
30. Id. ↑
31. Id. ↑
32. Id. ↑
33. Vans, Inc. v. MSCHF Product Studio, Inc., No. 22-1006 (2d Cir. 2023). ↑
34. Id. ↑
35. Id. ↑
36. In First Amendment law, prior restraint is government action that prohibits speech or other expression before the speech happens, see more at https://www.law.cornell.edu/wex/prior_restraint#:~:text=In%20First%20Amendment%20law%2C%20prior,expression%20before%20the%20speech%20happens. ↑
37. Vans, Inc. v. MSCHF Product Studio, Inc., No. 22-1006 (2d Cir. 2023). ↑
38. Nike Files Trademark Infringement Suit Against the Maker of Lil Nas X ‘Satan Shoes,’ McHattie Law (Mar. 31, 2021) available at https://mchattielaw.com/nike-tm-infringement/. ↑
39. Id. ↑
40. Id. ↑
41. Mike Masnick, MSCHF One Ups The Onion In Filing Hilarious Supreme Court Amicus Briefs That Educate (Mar. 6, 20230, tech dirt, available at https://www.techdirt.com/2023/03/06/mschf-one-ups-the-onion-in-filing-hilarious-supreme-court-amicus-briefs-that-educate/ ↑
42. Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). ↑
43. Mike Masnick, MSCHF One Ups The Onion In Filing Hilarious Supreme Court Amicus Briefs That Educate (Mar. 6, 20230, tech dirt, available at https://www.techdirt.com/2023/03/06/mschf-one-ups-the-onion-in-filing-hilarious-supreme-court-amicus-briefs-that-educate/ ↑
44. Id. ↑
45. Id. ↑
46. Taylor Dafoe, When an Art Collective Cut Up a $30,000 Damien Hirst Spot Print, the Spots Sold Out. Now the Leftover Paper Just Sold Too—for $261,000 (May 6, 2020), artnet, available at https://news.artnet.com/market/mschf-damien-hirst-cutup-1854450 ↑
47. Damien Hirst could potentially bring a legal claim against MSCHF for copyright infringement, assuming that the Severed Spots drop involved the unauthorized reproduction or modification of his copyrighted artwork. Here’s how he could potentially bring such a claim: If MSCHF cut up a Damien Hirst spot painting without permission and sold each spot separately, it could be argued that this action constitutes copyright infringement. By cutting up and selling individual spots from the painting, MSCHF may have violated Hirst’s exclusive rights under copyright law. Even if MSCHF argues that their action was a form of commentary or criticism, creating a derivative work based on another artist’s copyrighted work without permission can still be considered infringement. Transformative works, which provide a new meaning or message beyond the original, may be protected under fair use doctrines, but the determination of whether a particular use qualifies as fair use is often complex and depends on various factors. Further, if MSCHF used Hirst’s name, likeness, or other indicia of his identity in a way that could cause confusion among consumers as to the source or endorsement of their products, Hirst might also have a claim for trademark infringement or false endorsement. ↑
48. Juliana Neira, MSCHF is Selling $250 Andy Warhol’s – but Only One is Real (Oct. 25, 2021), designboom, available at https://www.designboom.com/art/mschf-andy-warhol-museum-of-forgeries-10-25-2021/ ↑
49. Annie Seminara, MSCHF’s C&D Grand Prix: Waving the checkered flag on infringement

    (Mar. 10, 2022), The Columbia Journal of Law & the Arts, available at https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/508 ↑

50. Jake Silbert, EXCLUSIVE: MSCHF MADE BOOTS FIT FOR ASTRO BOY, Highsnobiety, available at https://www.highsnobiety.com/p/mschf-big-red-boot/ ↑
51. Id. ↑
52. Id. ↑
53. Christian Allaire, Why Is Everyone Wearing These Cartoonish Red Boots? (Feb. 16, 2023), Vogue, available at https://www.vogue.com/article/everyone-is-wearing-mschf-big-red-boots ↑