In this third installment of the Graffiti Gown Saga, we review Moschino’s attempt to use the First Amendment to defeat Rime’s lawsuit for copyright infringement by invoking California’s Anti-SLAPP law.

A SLAPP, or strategic lawsuit against public participation, is a lawsuit that is intended to censor and/or silence public critics by burdening them with the cost of a legal defense. Historically, the SLAPP label has applied to frivolous defamation suits filed in order to intimidate and silence detractors. Twenty-eight states, the District of Columbia, and Guam have adopted specific protections against SLAPPs.

The California Legislature enacted its anti-SLAPP law, California Code of Civil Procedure § 425.16, in 1992 to combat what it viewed as a “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” The statute specifically provides for a special motion to strike a complaint to be filed within 60 days of service of the complaint or with leave or the court. The motion to strike stays all discovery and, if successful, provides a quick and relatively inexpensive end to the litigation.

To win an anti-SLAPP motion, a defendant must show that the lawsuit arises from “any act of that person in furtherance of the person’s right of petition or free speech. . . in connection with a public issue” and that there is no reasonable probability of the plaintiff succeeding on the merits of his claim. An “act in furtherance of a person’s right of petition or free speech . . . in connection with a public issue” includes:

  1. any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
  2. any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
  3. any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
  4. any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Under California Code of Civil Procedure Section 425.16(e)(3), a “public issue” for the purposes of the anti-SLAPP statute includes “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest . . . .” Cal. Civ. Proc. Code § 425.16(e)(3).

In its Motion to Strike Complaint, Moschino asserted Rime’s state law claims should be stricken because they violate California’s Anti-SLAPP law. Because fashion is the subject of the activity of the Metropolitan Gala, a “high profile party thrown annually by one of the nation’s most venerable institutions,” Moschino argued that “the issue in connection with Moschino’s free speech in [the] lawsuit is very much a public one.” Moschino further argued that, because Katy Perry is an international celebrity with a strong public following whose wearing of the Graffiti Gown generated tremendous publicity, Moschino’s activities arise from a matter of public interest.

U.S. District Judge Stephen Wilson agreed with many of Moschino’s assertions. In an order issued last month, the judge found that Moschino showed that its fashion line is a protected activity because it is intended to convey a message and a means through which fashion director Jeremy Scott expresses himself creatively. The judge also agreed that the fashion line qualifies as an issue of public interest because both Scott and Moschino are household names whose fashion line garners international attention.

However, the judge denied Moschino’s Motion to Strike Complaint, deciding that Rime sufficiently pled his state law claims. He further found that Rime showed a probability of success on the merits, noting that he could not find as a matter of law that Moschino’s use of Rime’s name alongside clothing heavily featuring his Vandal Eyes mural was not explicitly misleading or would not lead to a likelihood of confusion. The judge indicated, however, that he believed the issues were ripe for determination on an expedited basis and ordered the defendants to file motions for summary judgment by April 18, 2016, and set a hearing on those motions on May 23, 2016.

The saga continues. . . For more information, see Tierney v. Moschino S.P.A, et al, Case No. 2:15-cv-05900, In the United States District Court for the Central District of California, Western Division.