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Is That Legal – Apple Store Flash Mob

Disclaimer: I am not an attorney. In accordance with ABA policy, this blog should not be viewed as legal advice. It is simply my experiences, opinions, and stuff I looked up on the internet.

(cc) Devon Christopher Adams

This past weekend, Improv AZ organized a flash mob that invaded the Apple Store in Scottsdale. Our friends at Brand X Custom T-Shirts made ours shirts that resembled the Apple Store employees’. Each participant wore a royal blue shirt with a heart on it that had a leaf coming out of the top and a bite taken out of the side. Our group of about 30 participants walked into the store in small groups and proceeded to browse around for about 30 minutes, looking at and buying merchandise. We never represented ourselves as Apple employees, but if someone mistook us for an employee, we answered their question if we could or directed them to an Apple employee. If anyone asked us what we doing, we denied any implications that were acting in conjunction with each other. At the end of our invasion, we walked out calmly, took some pictures in front of the store, and left.

Did We Trespass?
No. The Apple Store is open to do business with the public. In legal terms, we were invitees. If we were asked to leave and we refused, then we would have been trespassing.

But You Weren’t There To Shop . . .
And how many times have you gone into a store just to look around with no intention of buying anything? At least one person in our group purchased something and several others looked at products that they were possibly interested in buying in the future. Additionally, we did not do anything that interfered with other shoppers’ ability to shop or employees’ ability to work.

Did We Commit Disorderly Conduct? Unlawful Assembly?
No. You have to behave pretty badly for those charges to stick. Peacefully walking through a business that is open to the public in matching shirts is not illegal. We weren’t rioting, fighting, disrupting business, making unreasonable noise, or refusing a lawful order to disperse.

Our Shirt vs. Their Shirt (cc) Devon Christopher Adams

Did We Commit Trademark Infringement?
Apple uses the apple with the bite out of it as a symbol of the source of its goods. Our apple-heart was not indicative of the source of any goods or services. There’s no trademark infringement because we weren’t claiming anything as a trademark.

Did We Commit Copyright Infringement?
I wouldn’t be surprised if Improv AZ and/or Brand X get cease and desist letters based on copyright infringement because our design was inspired by Apple’s logo. However, I’d argue that we created a parody that is protected under the fair use doctrine. A parody needs to resemble the original in order for people to get it; thus our shirts had to resemble the Apple shirts to be funny. Improv AZ did not make any money of these shirts, and Brand X probably isn’t turning a big profit either. Additionally, Apple doesn’t sell its shirt to the general public, and there’s no way someone who wants an Apple shirt would buy ours thinking it was close enough to what they wanted.

Thank you to everyone who came out to make this event a success and to Devon Christopher Adams and Sheila Dee for shooting such wonderful pictures of the event! If you want your own apple-heart shirt, they are available at Brand X Custom T-shirts.

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2 Comments

  1. troy says:

    You may be in the right legally, but I think you ethically crossed the line if you answered customers’ questions knowing that they thought you were an employee, as well as denying/avoiding the truth that your presence there with others was preplanned.

    I’m sure it was fun though! …except now you’re stuck with an Apple shirt that you may never wear again 😉

    1. Ruth Carter says:

      It was a great time, and we specifically told our people not to represent themselves as store employees.

      What do you mean I’m never going to wear that shirt again? That shirt is awesome! There’s a good chance I’ll wear it for my talk at PodCamp 2011.