Jeremy Scott and Moschino cannot seem to shake the lawsuit that graffiti artist Joseph Tierney, better known as RIME, filed against them for copyright infringement this summer. In response to Scott and Moschino’s individual filing of motions to motions to strike Tierney's complaint (based on anti-SLAPP grounds) and to dismiss the case, which was filed in the U.S. District Court for the Central District of California in August, U.S. District court Judge Stephen V. Wilson has denied both parties’ motions, thereby allowing the case to move forward - with a pre-trial court date set for May 2016.
You may recall that RIME asserts in his complaint: “Defendants Moschino and Jeremy Scott – two household names in high-fashion – inexplicably placed Rime’s art on their highest-profile apparel without his knowledge or consent.” That apparel is a Fall/Winter 2015 runway dress, as seen on model Gigi Hadid and then on Katy Perry at the Met Gala and a matching jacket, which Scott wore to the event.
Scott and Moschino have been fighting back quite intensely. In addition to motions to dismiss, the duo filed anti-SLAPP motions. For those who aren’t familiar with Anti-SLAPP motions, they are generally 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 filing such motions, Scott and Moschino argued that the designs at issue could not be subjected to infringement claims because they are matters of public interest, claiming that because Jeremy Scott is a public figure, his clothing designs are automatically a matter of public interest. RIME’s legal team strongly disagreed with this (and apparently so has the court).
In response to the anti-SLAPP motion, Tierney’s team told the court: "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 Tierney's legal team didn't stop there. In its opposition motion, they argue that Scott and Moschino 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.”
More to come ...