Graffiti Cannot be Copyright Protected, Claims Moschino, Jeremy Scott

THE FASHION LAW EXCLUSIVE - The latest update in the Rime vs. Jeremy Scott and Moschino graffiti copying case: The creative director and the Italian design house filed to have the Brooklyn-based graffiti artist’s case dismissed, arguing that he does not have standing to bring claims of copyright infringement because the work was an act of vandalism and should not be protected by law.

In a motion for summary judgment filed on Monday, Moschino and Jeremy Scott asked the court to dismiss the case because the artist, whose name is Joseph Tierney, is an "unabashed felon." According to Moschino and Scott, Tierney did not obtain permission from the building owner in Detroit, Michigan before creating his mural, known as "Vandal Eyes." According to their motion, "As a matter of public policy and basic logic, it would make no sense to grant legal protection to work that is created entirely illegally.”

They continued on to note: "Brazen and willful violations of the law cannot, and, indeed, should not result in the award of copyright privileges," they said. [Note: Rime has previously alleged that he was invited to create the mural at issue on a building in Detroit in 2012].

But the duo did not stop there. In fact, Moschino and Scott’s legal team attempted to bolster their argument by referring to one of the most notorious unsolved crimes in Los Angeles, the so-called Black Dahlia murder in 1947. When the photos of the "killer's criminal handiwork," which included the mutilated body of 22-year-old Elizabeth Short, were distributed by police and the media, they asked, could the killer sue them? "In a word: no," the defendants' motion states.

It is worth noting that Scott and Moschino’s legal team has been accused of straying off topic in prior proceedings in the case. In response to a prior opposition motion filed by the Moschino team, Tierney’s lawyer told the court: “Defendants’ everything-but-the-kitchen-sink motions could only have been designed to create work and expense, and to demonstrate to Plaintiff what he is in for if he continues to maintain this action." Moreover, they have also accused Moschino and Scott's legal team of bullying, and acting unethically and intentionally misconstruing the law: "To meet their goal of asserting multiple challenges to each and every cause of action, Defendants must dig deep for grounds that rely on a far too stringent fact pleading standard, or on misstatements of law.”

In his original complaint Tierney took issue with the recreation of his name on Moschino garments: “Moschino and Scott released a capsule collection featuring graphic designs that included literal copies of images of [Rime’s] mural. To add insult to injury, Moschino and Scott also included a forgery of Plaintiff’s signature and Plaintiff’s name 'Rime' throughout the collection.” In the motion at hand, Scott and Moschino argue that copying Rime’s art and his name and fake signature on the clothing is protected against claims of infringement. In connection with the recreation of the Rime signature, Scott and Moschino claim they are protected from trademark infringement claims by the First Amendment because the use of the Rime signature was transformative, in order "to create an urban feel" for the Moschino graffiti design.

Tierney filed suit against Moschino and Scott in August in connection with more alleged copying by Scott, who serves as creative director for Moschino and his own eponymous label. (This is not Scott's first time being sued for copying). According to Rime’s complaint, which was filed in the U.S. District Court for the Central District of California, Scott copied his well-known street art (namely, the mural, “Vandal Eyes”) for his Fall/Winter 2015 Moschino collection. In particular, Rime points to a Moschino dress, the gown that model Gigi Hadid wore to close the show and that singer Katy Perry subsequently wore to the Metropolitan Museum of Art Costume Institute Gala this year, and a jacket from the same collection, which Scott wore to the annual industry gala.

Since there is little case law on the collision of garments and graffiti, and particularly whether or not illegal graffiti may be protected by law, this case will be interesting - and precedent setting - if it makes it to trial.