It seems that the lawsuit that graffiti artist RIME filed against Moschino and its creative director Jeremy Scott in August is not going away anytime soon. In fact, it is becoming increasingly ugly. There have been two new developments since Scott filed his declaration last month, in which he denied any personal involvement in the copying, and since both Scott and Moschino filed motions to have the lawsuit dismissed. First: Joseph Tierney – aka RIME – filed a declaration of his own this week, drawing attention to his “name recognition on the art world” and his involvement in “high-profile museum exhibitions, including in the Museum of Contemporary Art in Los Angeles.” He also goes on to specify exactly what aspects of his “Vandal Eyes” mural that Moschino and Scott copied and reproduced on garments for the Italian design house's Fall/Winter 2015 collection.
According to his declaration, Tierney notes:
I signed the mural, just below and to the left of the “V” in Vandal, with a symbol that looks something like an asterisk. The symbol indicates that the artwork comes from an artist’s collective that I am a part of, called “The Seventh Letter.” The public, and in particular my target audience, understands the symbol to indicate that the Seventh Letter is the source of the artwork […] I have been shown images of Mochino pieces that bear a “Rime” signature. Although it looks a lot like my own signature, I can tell that this is not my actual signature, or even a reproduction of my actual signature. In other words, I can tell that someone else “signed” the pieces by writing the word “Rime” in a style that mimics my own.
But arguably even more interesting is the response that Tierney’s legal team filed in connection with Scott and Moschino’s individual motions to dismiss the lawsuit and their anti-SLAPP motions (Note: an Anti-SLAPP motion is a special motion to strike a complaint where the lawsuit arises from activity that is protected by free speech, and thus, aims to protect against "certain non-meritorious lawsuits that are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.").
In its opposition motion, Tierney’s legal team alleges that Scott and Moschino not only fail to deny that they copied the "Vandal Eyes" mural but they are tactically and intentionally attempting to scare and burden Tierney in hope that he will retract his lawsuit. The motion states: “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." And that's not all. They accuse Moschino and Scott's legal team of 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.”
The lengthy motion goes on: “Some of the grounds are just silly—such as Mr. Scott’s ill-conceived argument that he could not be liable unless Moschino qualifies as his agent, or both Defendants’ contention that the right of publicity only protects a person’s legal name. That other challenges represent little more than posturing is clear from the fact that they could never be successful at the pleading stage. For example, Defendants First Amendment affirmative defenses involve extremely fact-intensive analyses that Defendants have not scratched the surface of.”
For those interested in Tierney's position regarding the "erroneous" nature of Scott and Moschino's anti-SLAPP motion, read on. Tierney's legal team notes up front that the California state anti-SLAPP statute is "not intended to shield commercial activity from suit […] commercial speech designed to promote and sell ones goods or services [such as fashion designs], enjoys only the most limited protection and is generally outside the scope of anti-SLAPP statute." Commercial speech is regarded to fall outside of the protections of the statute as to avoid "eviscerat[ing] the unfair business practices laws."
Per the California Civil Code, "A claim is subject to anti-SLAPP dismissal only if the defendant demonstrates that the claim is one arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue, and the plaintiff is unable to establish that there is a probability that the plaintiff will prevail on the claim." Thus, in order to prevail on an anti-SLAPP motion, a defendant must meet a two-pronged test by showing that: (1) the challenged causes of action arise from "constitutionally protected speech in furtherance of a public interest" and (2) the plaintiff has demonstrated a probability of prevailing on the contested claims. And as Tierney's attorney accurately note: "Only if Defendants clear this first hurdle, and the Court finds the complained of conduct is constitutionally protected speech in furtherance of a public interest, may the Court look to the second prong […] If the defendant does not demonstrate this initial prong, the court should deny the anti-SLAPP motion and need not address the second step.”
RIME's legal team argues the Scott/Moschino do not meet the first prong of the anti-SLAPP statute, alleging that Jeremy Scott and Moschino's use and dissemination of RIME's artwork are not protected activities under the anti-SLAPP statute. According to the motion, "Defendants’ improper use of Plaintiff’s artwork and Defendants’ infringement of Plaintiff’s right of publicity in connection with the promotion, advertisement, sale and distribution of Defendants’ goods – is not a valid exercise of free speech in connection with a public issue." Tierney's legal team asserts that "Defendants erroneously state that any activity involving 'development and design of creative works' is subject to First Amendment protection as 'expressive artistic activity.' Defendants are mistaken." Moreover, they claim: "While the First Amendment applies to protect expressive works, the protection is not unbounded," and note that such protection applies far less to commercial speech, such as the sale of clothing, as Moschino and Scott are in the business of doing.
But they don't stop there because they claim that "Defendants misconstrue the anti-SLAPP statute 'public interest' requirement, claiming that because Jeremy Scott is a public figure, his clothing designs are automatically a matter of public interest. Defendants’ misappropriation of Plaintiff’s name on Defendants’ clothing is not an issue of 'public interest.'" Moreover, they claim that just because Jeremy Scott, a public figure, disseminated, sold and promoted the goods, that does not make it a matter of “public interest.”
As for prong two: "Defendants have not shifted the burden on any of Plaintiff’s state law causes of action, because they have not satisfied Prong 1 of the anti-SLAPP inquiry."
More to come …