Instagram’s “coolest man” Gianluca Vacchi filed a copyright infringement and false designation of origin lawsuit against E*Trade in a New York Federal Court. In the complaint, Vacchi stated that E*Trade violated the law by copying the persona and character created by Vacchi in a video. According to the complainant, E*Trade used those videos for its own commercial purposes and financial gain. Vacchi also alleged that two television commercials that simply copied his videos without any authority.
A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. Violation of a copyright is called infringement. Under the Federal Copyright Act of 1976; photographs are protected by copyright from the moment of creation.
The lawsuit said that E*Trade created, produced, and published a commercial containing a character that is a replica of Vacchi. “Yacht Life” and “Hard Work' are the impugned commercials against which the complainant filed the complaint.
Vacchi said that he has many videos where he was dancing with women on a boat while performing as DJ. Numerous YouTube videos, photographs, and music videos created and published by Vacchi has become synonymous with the image and persona created by E*Trade in the commercials. This initial commercial was subsequently followed by another E*Trade advertisement that also featured Vacchi’s character and his “not-so-typical lifestyle.”
Vacchi alleged against the defendant that the commercials depict a male character stunningly identical to Vacchi. The videos of both parties contained white males with identical silver-coloured hair, hairstyles, and the styles of facial hair. Both characters wear a pair of square-shaped sunglasses and are portrayed with their torso unclothed and covered with various similar tattoos. In reply to this allegation, E*Trade argued that Vacchi’s claim for infringement should be dismissed because Vacchi's videos are not substantially similar to commercials
Vacchi claimed that he has suffered severe damages, including harm on personal and professional reputation and goodwill. Additionally, he lost earnings in a sum not less than $1,000,000.00.” Judge Cote said that a plaintiff must show a substantial similarity between the defendant’s work and protectable elements of his own work with such similarity being gauged from the perspective of the ordinary observer.
Judge Cote supported E*Trade’s argument. The Judge found that Vacchi’s five registered videos focused on a character with no similarities to the main subject of E*Trade’s ‘Yacht Life’ commercial, which is “the dumbest guy in high school”. The dumbest guy is a young man and Vacchi is a man with grey hair. In analysing the similarities existed between E*Trade’s ‘Hard Work’ and Vacchi's registered videos, the Judge found that the E*Trade character lacked many of the most distinctive physical attributes of Vacchi’s character. The Judge dismissed the case.
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