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Could those who have made TV shows and films about the 1947 “Black Dahlia” killing of Elizabeth Short be liable for infringing the intellectual property of the murderer?
As crazy as the question sounds, it’s now being presented to the judge by the attorneys representing Italian apparel brand Moschino and fashion designer Jeremy Scott, accused of ripping off a mural by street artist Joseph Tierney (aka RIME) to create a dress worn by Katy Perry at the Metropolitan Museum of Art’s Met Gala in 2015.
Four months after U.S. District Judge Stephen Wilson ruled that not everything worn by Perry is protected by the U.S. Constitution and allowed Tierney’s lawsuit to proceed, the defendants are making a new argument that artistic works that are the product of illegal conduct are not entitled to copyright protection. And summary judgment papers (read here) open with discussion of the famous murder.
“As one of the greatest unsolved mysteries in Los Angeles history, the Black Dahlia murder continues to stir the public imagination and, in this case, provides a useful illustration of the most essential thing Plaintiff is lacking: a valid copyright,” writes attorney John Tehranian. “The Black Dahlia’s killer was, no doubt, a felon. But was he also a valuable copyright holder as a result of his illegal activities?”
Tehranian explains that Black Dahlia’s murderer hacked up the bodies of his victim in “a particularly original and artistic way” and suggests it would be ludicrous if “photographs of the killer’s criminal handiwork” set off a copyright infringement lawsuit from that murderer.
And what the hell does this have to do with graffiti? Well, Moschino and Scott allege that Tierney’s mural titled “Vandal Eyes” was the result of criminal conduct, “an unapologetic act of vandalism and trespass,” putting forth a declaration from the property manager where Tierney’s mural was created to support the proposition that he didn’t have permission. “And, as a basic matter of public policy, respect for the law, and congressional intent on copyrightable subject matter, felons do not get copyrights in their illegal actions,” adds Tehranian.
The argument appears to have surprised David Erikson and Jeff Gluck, the attorneys for Tierney as they thought they had a settlement that fully resolved the case. Instead, the plaintiff submitted an opposition brief earlier this month (here) that naturally takes displeasure at the idea that their client is being compared to a murderer. Supported by a declaration from Tierney himself, they say that Tierney was invited to create “Vandal Eyes” as part of a Detroit Beautification Project, “a publicly documented civic endeavor designed to combat illegal graffiti and promote a better, more livable environment for the citizens of Detroit.”
Putting aside the issue of whether Tierney’s work was sanctioned (his attorneys say so, adding the property manager wasn’t working for the company when “Vandal Eyes” was created), does “illegal” art get copyright protection?
Tierney’s attorneys argue that copyright is aimed at promoting the progress of the arts, and that courts shouldn’t concern themselves with the moral worth of a plaintiff. If there are violations of the law, they say, the legal system has other means of addressing this. And think of the implications, they tell the judge.
“By defendants’ logic, that there would have been no copyright protection for This Land Is Made for You and Me if it were written by Woody Guthrie while ‘trespassing’ on somebody’s meadow,” they write. “Or for Jack Kerouc if he wrote On the Road using a pilfered typewriter. Or for William Burroughs if he wrote Naked Lunch while under the influence of an illegal substance.”
Moschino and Scott submitted their reply last week. (Read here.)
“Contrary to Plaintiff’s implications, Defendants are not arguing that Plaintiff should lose his copyright because he is a bad person or has engaged in immoral conduct during his life,” states the defendants’ brief. “And it is not a necessary consequence of Defendants’ argument that the copyrights to Burroughs’s Naked Lunch would be invalid if he wrote it while under the influence of an illegal substance or Kerouac’s On the Road invalid if written on a pilfered typewriter. In these inapposite examples, the illegal action (using unlawful substances or stealing a typewriter) is not inextricably related to, or a but for cause of, the creation of the work over which protection is sought. In other words, neither Naked Lunch nor On the Road is an illegal work in and of itself. But Plaintiff’s ‘Vandal Eyes’ is; it is literally tangible residue of an act of trespass and vandalism.”
The defendants are sticking to their guns that the Black Dahlia murder is an apt analogy. This is set to be considered by Judge Wilson at an oral argument scheduled for May 23.
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