The Wall Street Journal Law blog reported
this week that graffiti artist Rime is suing Italian fashion house Moschino and
its designer, Jeremy Scott, for copyright infringement, in the Central District
of California. The article provided a link to the complaint.
The case is Joseph Tierney v. Moschino S.P.A., 2:15-cv-05900.
Plaintiff is a graffiti artist and is known as Rime. His work has been shown in several
museums and galleries around the world. He claims that Moschino incorporated a
reproduction of one of his works, Vandal Eyes,
in a dress
which was worn
by singer Katy Perry at the latest Metropolitan Museum of Art gala, and on a
men’s suit worn by Jeremy Scott at the same gala. The complaint takes care to
note that Ms. Perry “made a number of
“worst dressed” lists as a result” [Ouch!].
Plaintiff also claims that his name and fake signature were reproduced
on clothes and accessories, and that “Moschino” was included in the print,
making it appear that the print was created by the fashion house.
He is claiming copyright infringement, trademark
infringement, unfair competition, and infringement of his right of publicity.
Copyright Infringement
Plaintiff created Vandal Eyes
in 2012, when he was invited by a property owner to create a giant mural on a
wall of a building in Detroit. There is no doubt that it is protected by
copyright, as it has been fixed and is certainly original. Plaintiff has
applied to register his copyright in this work. Plaintiff claims that Jeremy
Scott attended the 2011 Arts
in the Streets exhibition at the Museum of Contemporary Art in Los Angeles
which featured Rime’s work, among other graffiti artists. If this access is indeed
shown, a lower standard of proof of substantial similarity would be required by
the court under Ninth Circuit case law, see for instance Three
Boys Music Corp. v. Bolton at 485.
Just as graffiti artists Revok, Reyes and Steel did in their
copyright
infringement suit against Roberto Cavalli, Rime claims that by
intentionally removing and altering his signature, Defendant intentionally
concealed copyright infringement and thus violated § 1202 (b) of the
Copyright Act. This section protects the integrity of copyright
information, and makes it illegal to intentionally remove or alter any copyright
management information without authorization of the copyright owner or the law.
Right of Publicity
As this blog concentrates on copyright, I will not comment
on the trademark and unfair competition claims. Plaintiff also claims that Defendants
infringed his right of publicity, as provided by California
civil Code §3344, as they “us[ed] his
name in connection with the marketing and sale of Moschino apparel and goods,
and for the purpose of advertising, marketing and soliciting purchases of
Moschino apparel and goods” and that he sustained damages because of these
actions. Indeed, 3344 (a) prevents knowingly using a person’s name “in products, merchandise, or goods, or for
purposes of advertising or selling, or soliciting purchases of, products,
merchandise, goods or services, without such person's prior consent.”
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