After reports of a settlement proved premature, designer Moschino S.p.A. and its creative director Jeremy Scott have moved for summary judgment on the copyright claims filed last year by street artist Joseph Tierney, better known as “Rime.” The motion raises a number of arguments, but the most significant is the contention that Tierney’s work, as graffiti, is ineligible for copyright protection in the first instance. The view here is that defendants are mistaken about the eligibility question. And even if defendants can convince the court that they are right about the legal question of the availability of copyright for street art or graffiti, Tierney’s factual rebuttal on the question of whether had permission to create the art that was used in Moschino’s clothing designs makes it hard to imagine that they could convince the court that there are no material facts in dispute—the applicable standard for a motion for summary judgment. It will be very interesting too to see how the court grapples with questions about whether characters and symbols can be copyright management information (CMI) under the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 1202).

Tierney sued Moschino and Scott last year for a variety of copyright and trademark claims based on the alleged use of Rime’s works in certain fashion lines. Tierney alleged in his Complaint both that Moschino misappropriated his “Vandal Eyes” images themselves in the fashion line featured in Moschino’s February 2015 runway show in Milan (shown above as set forth in the Complaint). Tierney also alleged that Moschino removed the identifying marks and reinserted them elsewhere, which he described as a manipulation of CMI in violation of the DMCA.

In January, the District Court denied the defendants’ motion to dismiss. Defendants had argued that: (1) as an artist, Scott’s designs were themselves entitled to First Amendment protection; (2) fashion is a matter of public interest and that the case was really a SLAPP suit—strategic lawsuits against public participation—that should be dismissed under relevant California law; (3) the copyright infringement claim should fail against Scott because Tierney has not provided anything that Scott was responsible for actual copying of the mural onto Moschino’s apparel; and (4) the CMI theory was misplaced, and was intended to apply to digital information, not physical attribution.

Having failed to have the case dismissed under the standard in which all facts alleged in the Complaint are assumed to be true, defendants moved for summary judgment, arguing that no material facts are in dispute under the applicable legal standard. What is that standard? The basic theory of the defendants’ motion is that insofar as copyright exists to promote creative expression, the commission of a crime is not something that the Copyright Act was intended to incent (“Tierney’s graffiti is the product of illegal trespass and vandalism and, therefore, does not enjoy the privilege of federal copyright protection”). In fairness to defendants, there is strikingly little legal authority either way. Defendants attribute this to the criminal nature of street art, and posit (understandably) that potential plaintiffs will often be loath to reveal themselves lest they face persecution.

Defendants invoke the infamous Black Dahlia murder case as a rhetorical tool:

The Black Dahlia murder continues to stir the public imagination and, in this case, provides a useful illustration of the most essential thing Plaintiff is lacking: a valid copyright. The Black Dahlia’s killer was, no doubt, a felon. But was he also a valuable copyright holder as a result of his illegal activities? Plaintiff Tierney’s theory of this case necessarily concludes so, and, in the process, he reveals the manifest untenability of his claims.

The Black Dahlia’s killer, of course, famously hacked up the bodies of his victims in a particularly original and artistic way. So when photographs of the killer’s criminal handiwork were distributed by police and media, could the Black Dahlia’s killer sue them for copyright infringement, claiming that the photographs unlawfully reproduced his copyrighted work—his fixation of an original series of markings into the tangible medium of a victim’s body—without authorization or payment to him? In a word: no.

The danger in rhetorical questions is that the obvious is not as obvious as the questioner supposes. Reproduction of photographs involved in a newsworthy crime is a completely different (fair use) copyright analysis than whether graffiti is entitled to copyright protection. Is it? In a word: yes. The other cited example of obscenity is not terribly persuasive, though the defendants may have an argument—at trial—about the equitable defense of unclean hands if they can prove an imbalance in the conduct of the parties. That is hardly summary judgment stuff, however.

Defendants also somewhat understate the scope of existing caselaw. Their motion suggestions that only one court has considered “question of copyright protection for illegal graffiti” and that that court “strongly implied that the graffiti placed on a building without permission of a property owner would not be entitled to copyright protection. See Villa v. Pearson Education, Inc., No 03-C3717, 2003 WL 22922178, *2-3 (N.D. Ill. Dec. 9, 2003) (whether a mural “is not protected copyright . . . because it is illegal graffiti . . . turns on questions of fact,” i.e., “the legality of the circumstances under which the mural was created”).

That is a long way from implying that it is not eligible, and it is also not the only court to grapple with it. Among others: the Ninth Circuit in Seltzer v. Green Day found the band’s use in a concert video of a street art image to be fair use. But it can only be fair use if it is copyrighted in the first place. And the litigation in New York continues over the famous 5Pointz graffiti Mecca, which could not if the underlying art were completely ineligible for copyright protection. And the decision last year under VARA on the Prado Dam mural also implicitly assumed that copyright protection was available. Indeed, defendants doth protest too much: “regardless of how much the literati and cognoscenti may romanticize graffiti, it is not entitled to copyright protection if it constitutes vandalism and trespass.” #makecopyrightgreatagain, perhaps.

Lastly, Tierney himself filed evidence of permission to create the art in question, making it almost inconceivable that the court would rule at this stage that (1) graffiti cannot be copyrighted if it were not created with the property owner’s permission, and (2) there are no disputes of fact about whether it there was such permission—because Tierney has created just such a dispute of fact. Defendants do plausibly challenge the ownership of the copyright of some of the elements involved, but there too it seems too soon to resolve any disputes of fact.

The CMI dispute remains a very interesting one, and far more unsettled than the basic eligibility question. Tierney alleges that an asterisk-like symbol is his signifier, and that the removal of it is the removal of CMI in violation of the DMCA. Against this, defendants argue, “The Seventh Letter symbol is not the title of the work, does not provide identifying information about the copyright owner or author of the work (unless Tierney admits that he is not the copyright owner) and is not otherwise any of the forms of copyright-related information dictated in 17 U.S.C. § 1202(c).” How the court rules on the breadth of what can be CMI will be very important for other visual arts cases, not just street art.

But the issues have been joined, and so it will be momentous either way if the court elects to answer the questions head on.