1:15pm PT by Eriq Gardner
Judge Allows Graffiti Artist's Lawsuit Over Katy Perry's Met Gala Dress
In November, we asked the question: Is anything worn by pop superstar Katy Perry protected by the U.S. Constitution? Well, it appears as though the answer to this question is a firm "no."
On Wednesday, Joseph Tierney, the renowned street artist known as "Rime," scored an impressive win in the first round of a lawsuit against high-end Italian apparel brand Moschino and fashion designer Jeremy Scott, running the table in a judge's order (read in full here). In response to both a motion to dismiss and a motion to strike, U.S. District Judge Stephen Wilson has decided to allow each and every one of Tierney's many claims to survive.
In the lawsuit, Tierney alleges that the defendants took his giant mural titled "Vandal Eyes" and put it on a dress, which was seen by many after being worn by Perry at the Metropolitan Museum of Art’s Met Gala this past May. (See picture.)
Moschino and Scott attempted to make this a free-speech issue by invoking California's SLAPP statute, which is meant to deter an impingement of one's First Amendment activity. The defendants had to demonstrate that they was exercising their constitutional rights on a matter of public interest. They cross this threshold, though only barely.
Wilson accepts Scott's word that he uses fashion to express himself creatively and that the work in controversy — graffiti on a dress — was meant to subvert the seriousness of black-tie fashion while also commenting on the way society objectifies women by literally superimposing cultural symbols and meaning on them.
But is it an issue of public interest?
"Defendants contend that their fashion was displayed at the Met Gala and involved celebrity Katy Perry, who is constantly in the public eye," writes Wilson. "However, Tierney's state claims subject to the anti-SLAPP statute are all grounded in Defendants' use of 'RIME' in their collection, not on their appropriation of 'Vandal Eyes' in the dress worn by celebrity Katy Perry and supermodel Gigi Hadid. Therefore, although Katy Perry's fashion choices may be of public interest, that conduct is not the basis for Tierney's state claims."
"That being said, the Court finds that Defendants' fashion line qualifies as an issue of public interest given that Jeremy Scott and Moschino are household names in high fashion," continues Wilson.
Having established this, the burden shifts to Tierney to establish he has a real shot at winning the lawsuit. The judge writes that Tierney has done so, giving him the ability to bring the case to its next stage of fact-finding.
Let's start with Tierney's claims under California law that Scott's dress constituted unfair competition and violated his publicity rights.
Wilson notes that Tierney had previously licensed his artwork to Adidas and Disney (he was one of four artists sanctioned to reinterpret Mickey Mouse), so when Scott (or his underlings) slapped "Rime" on the dress, the designer could have created the false impression Tierney was endorsing the collection. (Tierney also argued that using his artwork in this manner hurt his street cred.)
The judge also addresses the fashion defendants' use of Tierney's "Rime" tag and comes to a conclusion that could be trend-setting in the legal world.
"Defendants also argue that pseudonyms are not protected" under California's publicity rights statute, writes Wilson. "The Court recognizes that there is little case law on this subject. However, in at least one case, the Ninth Circuit recognized that 'Cher' could be protected under Section 3344."
The judge allows Tierney to pursue misuse of his nickname, and even allows him to pursue a negligence claim against the defendants in connection with this.
As for federal law, one is not supposed to remove or falsify copyright management information ("CMI") in a work of authorship. In this instance, Tierney alleges that his graffiti tag, "Rime," functions as such, and that when the fashion brand put "Moschino" on the dress with his mural, it falsely suggested to consumers that it rather than he was the author of the designs.
Moschino told the judge that there was no violation here because the CMI rule has an exception for identifying the "user of a work," but Wilson rejects this logic, writing, "As plaintiff argues, taking Defendants' theory to the extreme, virtually any person who took another's work and placed their name or band on it could be considered a 'user of a work' rather than an infringer, and escape liability."
The judge defers other issues like whether the use of "Rime" was explicitly misleading or whether the fashion defendants had nominative fair use to the plaintiff's mark. Such arguments will be taken up on summary judgment, and Wilson has set an expedited schedule to consider who should win the case as a matter of law. However, the anti-SLAPP statute also gives defendants an automatic right to appeal, so it's also quite possible that if this litigation doesn't settle, the battle between fashion and street art could be moving to a higher authority.
Tierney is repped by David Erikson and S. Ryan Patterson at Erikson Law Group as well as Jeffrey Gluck.