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.

Click here to view image.

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.