|Darfurnica, Nadia Plesner (2010)|
The right to freedom of expression (a constitutionally protected right under the First Amendment of the US Constitution and a fundamental human right under Article 10 of the European Convention on Human Rights), is often mistaken for being an absolute right. Rather, it is a qualified right for not all speech is protected (think defamation, fighting words, obscene speech, fraudulent statements...) and the right in respect of that speech which is protected exists not in a vacuum but in a balancing act with other laws such as privacy, consumer protection and copyright, among others. In other words, Plesner's argument that her right to freedom of speech and expression and/or her charitable purposes should (or in fact do) trump any copyright infringement is inaccurate and misplaced. I wonder if what she meant to say is that there is/should be an exception to copyright infringement for artistic expression (as there is under US copyright laws). On the other hand, had she replied to Vuitton's letter in 2008 and requested permission to use the image in 2010 (probably also having to pay a fee for use of the image), each or both instances of litigation may have been avoided. What's clear is that ignoring the problem (and the law) is not the way to go.