United States: Graffiti On The Runway: Street Artist Rime Pursues Lawsuit Against Moschino For Damaging His Street Cred

Last Updated: November 5 2015
Article by Nicholas M. O'Donnell

The fusion of street art, high fashion, and the law is hardly new, but the Italian designer Moschino's latest foray into this genre has landed the company in court. Joseph Tierney, a well known graffiti artist who works under the pseudonym "Rime", filed a complaint against Moschino and its creative director, Jeremy Scott, alleging copyright infringement, trademark violations under the Lanham Act, and unfair competition, and appropriation of name and likeness under California law.  Moschino's allegedly unauthorized use of his work has harmed the artist in numerous ways, Tierney alleges, not the least by opening him up to accusations of selling out.  In the words of Tierney's complaint: "nothing is more antithetical to the outsider 'street cred' that is essential to graffiti artists than association with European chic, luxury and glamour – of which Moschino is the epitome."  This theory of harm was something we talked about at the " Copyrights on the Street" panel at the Copyright Society of the USA meeting in Newport this year, and it is now being put to the test.

The suit, filed last August in the U.S. District Court for the Central District of California, arises out of Jeremy Scott's use of Rime's 2012 Detroit mural "Vandal Eyes" (image #1, all from the Complaint) in his Fall/Winter 2015 collection. The dress bearing Rime's mural was featured in Moschino's February 2015 runway show in Milan – it was worn by supermodel Gigi Hadid to close out the show (image #2). Then in May 2015, the dress was worn by Katy Perry at the Met Gala (image #3), where Jeremy Scott himself also wore the design (image #4).  The collection featuring Rime's work has generated a lot of publicity and is said to have earned Moschino a substantial boost in revenues, according to articles in The New York Times and The Wall Street Journal.

Not only did Moschino and Scott copy the mural, but they also – "to add insult to injury" as the complaint puts it – included a forgery of Rime's signature and his name through the designs in the collection. In addition, the artist's image was embellished with Moschino brand logos, Tierney says.  These embellishments constitute defacement, according to the artist, and amount to a false representation that the artwork was created by Moschino and/or Scott, not Rime—and thus constitute an alteration of copyright management information in violation of 17 U.S.C. § 1202.  This theory about graffiti signatures and copyright management information is also in play in the Cavalli case.

Tierney further claims that Moschino violated the Lanham Act and creates a likelihood of confusion with Tierney's work and/or authorization. By creating the impression that Rime was the author of the designs, Tierney alleges that Moschino undermined decades of efforts by the artist to establish 'his name and signature in the minds of consumers as associated with high quality artwork."  Part of Rime's reputation, he argues, is founded on "eschewing connections to commercial consumerism except in carefully selected instances."  An association with Moschino poses a significant threat to carefully crafted reputation.

Moschino and Scott have now responded by filing separate (but largely overlapping) motions to dismiss and motions to strike the state law causes of action.  The argument underlying the motions to strike is three-fold, in accordance with the anti-SLAPP statute that seeks to prevent lawsuits filed to silence a defendant's exercise of free speech on a matter of public interest.

First, the defendants argue that Scott, as the creative director for Moschino, is above all an artist who uses the medium of fashion design in order to express his creativity (these ideas are detailed in a declaration by the designer, which the Hollywood Reporter calls an "eyebrow raiser").   In fact, Scott appears as eager to claim the title of subversive artist as Tierney.  For example, the motion argues that Scott's use of graffiti in fashion design is a form of (feminist) social commentary "on the way in which society objectifies women."  As such, the designs are a form of artistic expression protected by the First Amendment, not simply a way to sell clothes (in fact, the defendants deny that the fashion items in dispute were ever sold in the United States or even featured at a fashion show or other public event in this country).

Second, Moschino and Scott contend that fashion is a matter of public interest. Citing a number of cases that construe the concept of "public interest" broadly for purposes of the anti-SLAPP statute, the defendants claim that "[f]or better or worse, in our society, the fashion decisions of major celebrities at a major annual gala that receives tremendous press attention is indisputable a matter of public interest."  This second argument seems to cloud the first one to some degree – what is presumably at issue here is not simply the fashion choice of celebrities but rather Mr. Scott's fashion design as social commentary.

In addition, SLAPP statutes are founded largely in justifiable concerns about free expression, and are intended to curtail lawsuits that intimidate things like free speech and petitioning the government. But all copyright restrictions are a check on unlimited expression, but that is not a Constitutional problem because copyright law is authorized by the Constitution itself.  It's dubious that pursuing infringement claims can be characterized in this way without allegation or evidence of some ulterior motive.

Scott's individual motion to dismiss argues that the copyright infringement claim fails because Tierney has not provided anything more than "threadbare allegations" that Scott is responsible for actual copying of his mural onto Moschino's apparel.

The two defendants argue together that the CMI theory is misplaced, and was intended to apply to digital information, not physical attribution. Section 1202 was indeed enacted as part of the Digital Millennium Copyright Act, but there is a split of authority on whether CMI has to be digital.

With a hearing on the motion to dismiss scheduled for December 21, we may soon see which of the Tierney's claims withstand the defendants' response.

My thanks to my colleague Maria Granik for her considerable assistance in drafting this article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nicholas M. O'Donnell
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.