Nike’s Lawsuit Over Satan Shoes by Lil Nas X and MSCHF: Free Speech Defense
Written by SOURCE on April 1, 2021
The drama over the custom Satan-themed Nike sneakers, designed by Brooklyn-based product studio MSCHF in collaboration with rapper Lil Nas X, continued this week as parties in the lawsuit around the viral footwear argued over its status as a First Amendment-protected piece of art.
Nike filed the lawsuit against MSCHF on Monday, accusing the studio of trademark infringement, trademark dilution, false designation of origin, and unfair competition. The complaint came on the same day of the shoes’ release and days after images of them first appeared on the internet. The custom sneakers, which use retro Nike Air Max 97s as their base, advertise drops of real human blood in the insole and have a satanic theme matching the music video for Lil Nas X’s newly released song “Montero (Call Me By Your Name).” They were instantly controversial and misleading for many, leading some to presume that Nike was involved in the project.
Nike issued a statement on Sunday clarifying that it had no connection to the Satan shoes or the involved parties, and filed a lawsuit in the Eastern District of New York the next day. It alleges that MSCHF is “deceiving consumers into believing that Nike manufactures or approves of the Satan shoes” and causing the sneaker brand significant harm in the process. (Lil Nas X was not named as a defendant in the lawsuit.) Nike has asked that the court order MSCHF to stop selling the shoes and hand over everything related to the style to be destroyed. It’s also asked for an award of triple the damages.
On Wednesday, MSCHF filed a letter opposing Nike’s request for a temporary restraining order that would bar it from fulfilling orders for the shoes, which sold out in seconds upon release on Monday. MSCHF’s legal representation explained that the company had already shipped out 665 of the 666 sneakers it made for sale.
In response to that, in a subsequent letter filed on Thursday, Nike asked that the shoes already sent out be recalled as the court handles its injunction request. In the same letter, it accused MSCHF of provoking Nike into a lawsuit and pointed out that the studio was promoting a T-shirt with an image of the first page from the lawsuit on it.
MSCHF argued that Nike did not show that anyone who actually purchased the shoes was confused about them not being official Nike products. The studio said that such confusion would be “highly unlikely” given that people who bought the shoes are sophisticated and understand that it is not a proper Nike collaboration. Nike replied in its letter that even sneakerheads were confused by the shoes.
MSCHF also questioned in its response why Nike never brought legal action against its similar Jesus shoes project from 2019. Nike said that it has no obligation to litigate over that smaller release, which did not generate nearly the same controversy as the Satan shoes. “Nor has Nike ruled out pursuing relief related to the Jesus Shoe at this time,” the sneaker giant added.
The letter from MSCHF described the Satan shoe customs as not mere sneakers but “individually-numbered works of art.” It claimed that they are a satire on the pace of collaborations in general, a comment on how “brands like Nike collaborate with anyone willing, to make a splash.” It went on to say that their use of satanic imagery is connected to the background of Lil Nas X, a gay Black man who “spent his teenage years hating himself because of what Christianity taught about homosexuality.” In these descriptions, MSCHF posed the Satan shoe project as an expression protected by the First Amendment.
In an interview with Complex last week, MSCHF co-founder Daniel Greenberg said that his company selling the Satan shoes was totally legal because they used real Nike products for their base.
“Because we are buying their shoes and doing our own art on it and selling it for more, it’s, like, 1,000 percent legal, which is why they can’t do anything about it,” he said.
In responding to MSCHF’s argument that its custom shoes are pieces of art, Nike said that its trademarks “would be severely diminished if anyone were free to manufacture a shoe with a Swoosh simply by calling it a work of art.” Nike’s representation argues that the Satan shoes are not one-off pieces of art, but mass-produced sneakers. Nike’s response allows that MSCHF has the right to criticize social norms, but says that criticism has nothing to do with the Nike trademarks—its brand name and Swoosh logo—used in the project. The sneaker company says that the trademarks have no “artistic relevance” to the social commentary MSCHF offers.
The back-and-forth letters from MSCHF and Nike came ahead of a motion hearing, scheduled for Thursday morning, on the sportswear company’s request for a temporary restraining order.
