12:15pm PT by Eriq Gardner
Is Anything Worn By Katy Perry Protected by the U.S. Constitution?
Anybody can express themselves, but an Italian apparel company is arguing that whatever pop songstress Katy Perry wears gets special treatment under the First Amendment to the U.S. Constitution.
Joseph Tierney, the renowned street artist known as "Rime," is suing Moschino and fashion designer Jeremy Scott for taking his giant mural titled "Vandal Eyes" and putting it on the dress worn by Perry at the Metropolitan Museum of Art’s Met Gala this past May.
"If this literal misappropriation were not bad enough, Moschino and Jeremy Scott did their own painting over that of the Artist — superimposing the Moschino and Jeremy Scott brand names in spray-paint style as if part of the original work," states the complaint asserting copyright, unfair competition and publicity rights claims.
In response to the lawsuit, Moschino this past week filed a motion based upon California's SLAPP statute.
The SLAPP law gives an advantage to those who are trotted into court over their First Amendment-protected activity on a matter of public interest. If a plaintiff can't show a likelihood of prevailing in the lawsuit, the litigation ends early.
First, Moschino must convince a judge that the dress in question is an exercise of its right of free speech. The Italian brand points to a Paris Hilton lawsuit over greeting cards and says that courts have traditionally interpreted the threshold "rather loosely." It also nods to cases involving comic book charactures of musicians, the names of characters on the TV series C.S.I., and a video game likeness of Gwen Stefani as other examples of the exercise of free speech.
"It is well-established that the wearing of fashion (let alone its design and dissemination) is a form protected First Amendment activity as a form of expressive conduct," says Moschino, looking for similar treatment.
Still, to win the first prong of the SLAPP analysis, Moschino must also convince the judge that its free speech is connected to a matter of public interest. Alas, that's where Perry comes in. Moschino says that public interest attaches to popular culture, that it and Scott are "household names in high fashion," and that the lawsuit targets actions occurring at the Met Gala.
According to Moschino's legal memo, "And Ms. Perry, as a major celebrity with a strong public following, is alleged to have generated tremendous publicity as she was 'widely photographed in the clothing,' and garnering 'immense international publicity including The New York Times, CNN, Vogue, Vanity Fair, People, US Weekly, and ... on social media.' Thus, Plaintiff alleges that Moschino's activities at issue in this suit arise from a matter of public interest."
Tierney's side may argue that it's the design of the dress — not the wearing of it — that prompts the lawsuit. But even if Moschino gets past the initial hurdle, it still will need to show why the case is doomed. The legal brief (read here) goes on to make other arguments that, pardon the fashion pun, seem like a stretch.
For example, trademark law has something known as the Rogers test, a First Amendment-based defense that holds that if there's something of "artistic relevance," use of a trademark can't rise to a violation under the Lanham Act. Here, the defendant asserts that use of "RIME" on the dress in question is artistically relevant because the fashion company aimed to put street art on ultra-expensive clothing and that its use of the graffiti tag achieved this aesthetic.
Moschino also argues that it has a nominative fair use to Tierney's work — using a trademark to refer to him in his street artist capacity without suggesting sponsorship or endorsement. Moschino also tells the judge its use was transformative — that it couldn't have violated publicity rights because using Tierney's signature wasn't the "very sum and substance of the work in question," and that "at most, any alleged use of the word RIME, is used only to create an urban feel in furtherance of the independently creative idea of putting graffiti — or street art — on ultra-expensive clothing."
The memo also comes with another eyebrow-raiser — a declaration from Scott himself.
Among other things in his declaration (read here, especially for the pictures) , Scott tells the court that he's not like those "fashion elites" who have "dictated" what people should wear, but rather his work "subverts the seriousness" and "puts a smile on the faces" of his audiences. He says his work isn't always "on trend" — taking a shot at those like Vogue and Harper's Bazaar dictating the "zeitgeist" of the fashion season — and that below the surface, his work "prods viewers and wearers to ask questions about bigger social issues." One example given is Rihanna's military head gear in the music video Hard, which he says is evocative of Mickey Mouse, "thereby communicating the inherently puerile nature of war."
Then again, though he takes credit for the idea of a graffiti-based connection, Scott also disclaims some hands-on role on designing Perry's Met Gala dress, saying, "I did not design the actual print on the dress and suit at issue in this suit and I did not design the RIME graphics on two items reproduced in the Plaintiff's Complaint. Those graphics were selected and created by a graphic artist at Moschino completely independently of me."