Back in October, we surveyed some developments in lawsuits over public art and protection available under copyright law in graffiti art. There has been some movement, and other developments, in these cases.
In a Chicago lawsuit, director and Monty Python alumnus Terry Giliam faces an injunction request over his new film Zero Theorem, which the plaintiffs allege infringed on street art in a mural in Buenos Aires (here again is a comparison set out in that Complaint).
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Several defendants’ first response to the Complaint was to request that the case be transferred to federal court in Los Angeles. Their primary argument is that Illinois has no relationship to the filming or production of the movie, or to the defendants. Such motions carry a relatively high burden; so long as a court has jurisdiction, courts will defer to the plaintiff’s choice of forum, for the most part. And, many of the defendants’ arguments refer to the foreign components of the case (filming in Romania, production in London). Candidly, transfer to Los Angeles makes those witnesses no more accessible than from Chicago. The plaintiffs have since responded forcefully, point out as well that one of the defendants has pursued infringement claims before in Chicago, undermining that defendant’s claim of inconvenience.
Elsewhere, the lawsuit against American Eagle in New York by David Anasagasti (better known as “Ahol Sniffs Glue”) over his mural “Ocean Grown” has been settled, without any details available. The lawsuit has been dismissed with prejudice by stipulation, meaning it cannot be brought again. Similar infringement claims against Sara Bareilles and Wal-Mart have also been resolved, according to Law360.
In California, clothing designer Robert Cavalli has taken the merits of the claim head on. “In response to the recent lawsuit brought forward by artists Jason ‘Revok’ Williams, Victor ‘Reyes’ Chapa, and Jeffrey ‘Steel’ Rubin, the Roberto Cavalli company would like to state that no official notice of such suit has been received,” a spokesperson for the label was quoted in Vogue as having told New York Magazine. The company has not yet formally appeared in the action, however, but yesterday several other defendants moved to dismiss the claims against them that were added in an Amended Complaint filed after the initial pleading arising out of: (1) the Digital Milennium Copyright Act (DMCA), 17 U.S.C. §1202 et seq.; (2) the Lanham Act (15 U.S.C. § 1125(a), governing trademarks); (3) an unfair competition claim under California Business and Professions Code § 17200; and (4) a claim for California common law unfair competition.
Staff USA Inc., Nordstrom, Inc., Amazon.com, Inc., and Zappos.com, Inc. are all accused in some respect of contributory infringement, that is, that they are selling the items made by Cavalli that the plaintiffs allege infringe on their street art. In this motion, these defendants argue first that the DMCA does not apply because their alleged wrongdoing has no Internet component, that is, even if they sold the items over the Internet, the DMCA speaks only to actual electronic manipulation and infringement by those defendants themselves. Since there is no allegation they they altered or copied the graffiti electronically, they argue, they cannot be liable under the DMCA. The Lanham (trademark) argument is that to the extent that the plaintiffs accuse these defendants of a copyright violation, that is the sole remedy under federal law. Likewise, the state law claims (unfair competition and California Business and Professions Code) are preempted by federal copyright law, they argue.
If successful, the motion would not resolve the entire case as to these defendants (the underlying copyright infringement claim would remain to be litigated), but it is clear that these defendants intent to defend themselves actively.