Will representing graffiti artists soon become a micro niche
for US IP attorneys? Here is another case where graffiti artists sued a
corporation for allegedly using their art. On February 12, the Central District
Court of California (CD California) denied Defendant Roberto Cavalli’s motion
to dismiss a copyright infringement suit filed last year by Jason Williams and
others graffiti artists. The case is
Williamset. Al v. Roberto Cavalli S.p.A. et al., cv 14-06659.
Plaintiffs are Jason Williams, known as Revok, Victor Chapa,
known as Reyes, and Jeffrey Rubin, known as Steel. They are graffiti artists who
had been invited in 2012 by a San Francisco property owner to create a mural in
San Francisco’s Mission District (the “Mural”). Revok and Steel painted their signatures,
over a background of “revolutions” imagery which is Chapa’s signature style (CD
California p. 1 & 2).
Defendant is Roberto Cavalli, an Italian fashion company
known for its colorful prints. It
produces and markets a lower-priced brand called
Just Cavalli, which introduced in March 2014 a capsule line of
clothing and accessories decorated with graffiti art (the “Graffiti Collection”).
Revok, Reyes and Steel claimed that the line reproduced without authorization elements
of the Mural, using high-resolution photography. They asked Defendant to stop
selling the Graffiti Collection, but Defendant did not comply. One of the reasons
for not complying was apparently that Italians are on vacation in August
[this is known as
the dolce vita demurrer in some legal circles] (
amended complaint at 34).
Plaintiffs then filed a copyright and trademark suit against
Cavalli, the company producing the goods, and retailers selling the line, such
as Amazon and Nordstrom. Defendant moved for summary judgment, which was denied
by the CD California. As this is a
copyright law blog, I will only comment about copyright infringement.
Signature and Droit
Moral
Revok and Steel had used
their respective signatures as part of the design, and claimed that Defendant made
them indiscernible and superimposed the Just
Cavalli name over Chapa’s imagery, even adding sometimes its own signature,
thus giving the impression that Roberto Cavalli created these designs. Plaintiffs
considered this to be “a defacement” and
also “a false representation that
{Roberto Cavalli] rather than Plaintiffs was the creator” (amended
complaint at 32). However, they did not claim that Defendant had thus violated
the Visual Artists Rights Act of 1990 (VARA).
VARA,
17 U.S.C. § 106A, was enacted to implement article
6bis of the Berne Convention into U.S law. It provides authors of a work of
visual art the right to claim authorship of that work, to prevent the use of
his or her name as the author of any work of visual art which he or she did not
create, and to prevent “
the use of his or
her name as the author of the work of visual art in the event of a distortion,
mutilation, or other modification of the work which would be prejudicial to his
or her honor or reputation.“ Under § 101 of the Copyright Act, a painting
or drawing existing in a single copy is
indeed a work of visual art, and thus it can be argued that VARA applies to the
Mural.
However, VARA is not always successfully used by graffiti
artists in a court of law. In 2013, New York City graffiti artists claimed in
the Eastern District of New York (EDNY) that a realtor about to destroy the 5Pointz
buildings in Queens, on which they had painted several of their works, would
thus violate VARA, as destroying their work would be prejudicial to their honor
and reputation. But Judge Block from the EDNY was not convinced, noting that
Plaintiffs knew that the buildings were
intended to be demolished, and that they therefore had “
created their own hardships” when painting on a support they knew
was doomed (the case is
Cohen v. G&M Realty LP).
In our case, the possible VARA issue was not the destruction
of the support, but the alteration of the signature, which could possibly
prevent the artists to claim authorship of the Mural. However, Plaintiffs chose
not to argue that Defendant violated their rights under VARA.
Signature as
Copyright Management Information
Instead, they claimed that the signatures on the mural constitute
copyright management information (CMI), which is protected by §
1202 (b) of the Copyright Act, under which no person can remove or alter any copyright
management information without the authority of the copyright owner or the law.§
1202(c) lists “[
t]he name of, and other
identifying information about, the author of a work” as CMI.
For the Plaintiffs, Defendant intentionally removed this
information “with the intent to induce,
enable, facilitate, or conceal an infringement of Plaintiff’s right under the
[Copyright] Act“ and, in some pieces of the Graffiti Collection, even “replaced such information with false,
altered and inaccurate copyright management information” (amended complaint
at 49).
Defendant argued that section 1202 does not protect
signatures. However, as it did not cite any authority for that proposition,
this argument failed to convince the court, noting that “a signature seems to be the exact type of information that would
identity the author of a work” and, as such, are within the scope of § 1202(c)(2).
Defendant also argued that, as § 1202 was enacted as part of
the Digital Millennium Copyright Act (DMCA), some technological process must be
used to place or remove the signature, and that it was not the case here. However,
the court cited several cases from courts belonging to the Ninth Circuit which
had found signatures not in digital form to be CMIs. Therefore, the CD
California denied Defendant’s motion to dismiss Plaintiff’s cause of action for
violation of § 1202 of the Copyright Act. The suit will now proceed.
