With street art becoming increasingly popular, questions surrounding the legal issues faced by the successful street artist are abound. Is street art legal? Can we copyright street art? How can street artists protect their work? We’ve sought to answer those questions before on Art Law Journal, when we discussed Miami street artist AholSniffsGlue’s copyright infringement lawsuit against American Eagle, who appropriated the street artist’s work for their spring 2014 marketing campaign. Now, fashion and street art are intersecting in a battle for rights once again – the stakes a little higher, the players a little bigger, and the arguments far more complex.
In 2012, street artist Rime, whose real name is Joseph Tierney, was commissioned to create a mural to cover the side of a building in Detroit. Quite literally titled “Vandal Eyes,” the mural features the word vandal written in characteristic graffiti-style, with two large eyes overlapping the word. Three years later, Rime was both surprised and dismayed to find that his work had been appropriated by Moschino’s creative director Jeremy Scott, who had lifted Rime’s “Vandal Eyes” for a full-length gown that first appeared in Moschino’s February 2015 runway show in Milan on supermodel and Instagram celebrity Gigi Hadid. It appeared again in May 2015, at the highly publicized Met Gala on pop-star Katy Perry, who was accompanied by Scott himself, also wearing a jacket with Rime’s original work. The collection featuring Rime’s work has generated a lot of publicity – it landed Perry on the worst-dressed list – and is said to have earned Moschino a substantial boost in revenues, according to articles in The New York Times and The Wall Street Journal.
Rime proceeded to file suit in the U.S. District Court for the Central District of California, alleging copyright infringement, trademark violations under the likelihood of confusion test under the Lanham Act, unfair competition, and appropriation of name and likeness under California law. Rime alleges that Moschino quite literally misappropriated the work, going so far as to include the artist’s forged signature alongside a Moschino logo, without express permission from the artist. He claims that such unauthorized use has harmed the artist and his reputation in numerous ways: His complaint goes as far to state that “nothing is more antithetical to the outsider ‘street cred’ that is essential to graffiti artists than association with European chic, luxury and glamour – of which Moschino is the epitome.” Interestingly, it’s a similar argument – and one that appears to be recurring in copyright street art cases – that AholSniffsGlue made in his suit against American Eagle. Because the street artist propagates an anti-corporate message focusing on ‘the veneer of our everyday surroundings and the dull, job-related conflicts often encountered in a dysfunctional workplace,’ a perceived collaboration with American Eagle would severely damage his reputation and image as a street artist, since a likelihood of confusion most certainly would occur.
Can You Copyright Street Art?
As we’ve previously discussed, it can be argued that street art should receive copyright protection. Copyright protection is available for “any original work of authorship that is fixed in any tangible medium of expression.” However, courts have suggested that illegal street art work is not subject to copyright protection because a work must be free from illegality, with the policy argument for this requirement being that no one should profit from his or her wrongs. Creating works without the property owner’s permission does open up the artist to criminal charges of vandalism or trespass, depending on local laws. Often times the risk keeps most street artists from claiming copyright infringement.
But that’s not the case here since Rime was commissioned for the work and thereby received permission from the owner of the building. For his defense, Scott appears to be making a fair use argument, arguing that his use of graffiti in fashion design is a form of (feminist) social commentary “on the way in which society objectifies women.” He goes on to say the designs are a form of artistic expression protected by the First Amendment, not simply a way to sell clothes. With his argument, Scott is invoking anti-SLAPP statutes, or Strategic Lawsuits Against Public Participation, which are designed to bar lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. He’s arguing that fashion is a matter of public interest, stating that “for better or worse, in our society, the fashion decisions of major celebrities at a major annual gala that receives tremendous press attention is indisputable a matter of public interest.”
Can Street Art be Trademarked?
According to Rime, he’s entitled to remedies under the Lanham Act, which prohibits trademark infringement, trademark dilution, and false advertising. But wouldn’t that mean that Rime would have needed to register his artwork as a trademark in the first place? Can he claim a trademark in something that isn’t an extremely identifiable logo or brand? Rime argues he can under Lanham, specifically section 43(a) which sets out the “likelihood of confusion” standard. It states that:
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
Rime argues that the sufficient similarity of the design is such that a consumer would be led to assume that Rime created the design in tandem with Scott and Moschino, which significantly impacts his reputation as a subversive artist who strays from this kind of commercial partnership. Rime’s argument is perhaps even stronger than the trademark issues faced by fast fashion retailers we’ve previously discussed here because anyone who knows Rime’s work would easily be confused by the street artist’s work on an expensive designer dress. Moschino even went as far as to use the artist’s signature in the dress, which strongly implies that the street artist was somehow involved with the design.
How A Street Artist Can Protect Their Work
A case for copyright infringement and trademark violation is always stronger if you’ve got the paperwork to back it up. Of course, copyrighting street art does become a little trickier, since in some instances the work would be considered vandalism and thus ineligible for copyright protection. However, if you’re commissioned for a particular project, and your work is original, you should register your copyright. And if you’re using a design that can irrefutably be tied to you, a trademark would be appropriate.
But even if you haven’t taken those measures, a street artist can have valid claims against infringers based on the Lanham Act. If someone has appropriated your work in a way that creates a likelihood of confusion of its origin for a discerning consumer, then you should seek legal remedies.