Did you know that your choice of fashion is a form of expressive conduct protected by the First Amendment?  It makes sense when you consider that fashion is often used to express political and social views.  For instance, in a 1969 decision, Tinker v. Des Moines Independent Community School District, the United States Supreme Court held that students wearing black armbands at school to protest the government’s policy in Vietnam were quietly and passively expressing their political views, an act which is protected by the First Amendment.

But is a fashion design a creative expression that should also be afforded First Amendment protection?  According to Moschino, yes.  In a Motion to Strike Complaint filed by Moschino in the lawsuit by graffiti artist Joseph Tierney a/k/a “Rime” against Moschino and its creative director, Jeremy Scott, Moschino argues that “fashion creations are considered ‘expressive works’ protected under First Amendment.”  In support of that contention, Moschino highlights a gown from its Fall 2014 runway collection featuring “a print replete with nutritional content information and graphics as if the gown were a giant bag of junk food.”

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Moschino notes that this particular design “highlights the disposable nature of fashion and speaks to the potentially dichotomous nature of inner and outer beauty and the waist/waste and excess of consumer culture.”  That same collection included designs inspired by Budweiser, Cheetos, Hershey’s, and McDonald’s, among others.

Click here to view the image

Click here to view the image

Click here to view the image

Click here to view the image

According to Moschino, much like these sartorial creations, the Graffiti Gown resulted from Scott’s artistic and creative vision and is “a vehicle to communicate and connect with the world.”  As such, Moschino argues, the designs constitute an exercise of Moschino’s free speech which is protected by the First Amendment.

How could this alleged First Amendment protection defeat Rime’s claims against Moschino for copyright violations?  Find out in The Graffiti Gown Saga, Part 3:  What is an anti-SLAPP law?