Last week Apollo magazine published my comments about the recent 5Pointz decision. The article can be found here, and the text is reprinted below:
After reports of a settlement proved premature, designer Moschino S.p.A. and its creative director Jeremy Scott have moved for summary judgment on the copyright claims filed last year by street artist Joseph Tierney, better known as “Rime.” The motion raises a number of arguments, but the most significant is the contention that Tierney’s work, as graffiti, is ineligible for copyright protection in the first instance. The view here is that defendants are mistaken about the eligibility question. And even if defendants can convince the court that they are right about the legal question of the availability of copyright for street art or graffiti, Tierney’s factual rebuttal on the question of whether had permission to create the art that was used in Moschino’s clothing designs makes it hard to imagine that they could convince the court that there are no material facts in dispute—the applicable standard for a motion for summary judgment. It will be very interesting too to see how the court grapples with questions about whether characters and symbols can be copyright management information (CMI) under the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 1202).
Just three months after the Supreme Court denied certiorari review of last year’s Ninth Circuit decision finding California’s Resale Royalty Act unconstitutional under the Dormant Commerce Clause in part—but also valid in part—the U.S. District Court in Los Angeles has ruled the entire law invalid as preempted by copyright law. Critically, the opinion relies on last year’s Ninth Circuit ruling on the Commerce Clause issue to overrule a 1980 Ninth Circuit case that expressly rejected the idea that the law was preempted. This core holding of yesterday’s opinion is hard to square with Ninth Circuit precedent, but that will be tested on appeal, for sure. As before, expect proponents of Congressional efforts to enact national legislation to use this decision as support for the idea that a federal solution is necessary, but those efforts have born little fruit to date.
Last year street artist Joseph Tierney, better known as “Rime,” sued designer Moschino S.p.A. and its creative director, Jeremy Scott, for a variety of copyright and trademark claims based on the alleged use of Rime’s works in certain fashion lines. The presiding court has denied Moschino’s efforts to have the claim dismissed in a decision that provides an important, if implicit, endorsement of the rights of street artists under the Copyright Act, and of a novel theory under the DMCA. While some reports stated that the case was now going to trial, it is not there quite yet. It will now presumably head into discovery for the exchange of facts and information to see if there is in fact a need for a trial later.
Last year we bemoaned a lost opportunity when a preliminary injunction concerning a mural on the Prado Dam in California was decided under what seemed to us to be a misunderstanding of the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A ("VARA"). Although a preliminary injunction was eventually entered on other grounds concerning historic preservation statutes, the court joined a long line of decisions that seemed not to understand or unwilling to apply what VARA actually says. Given the rarity with which VARA claims actually get to court, it was a frustrating lost chance for some badly needed interpretive guidance.
The U.S. Supreme Court has declined to hear an appeal of last year’s Ninth Circuit decision striking down part of the California Resale Royalty Act. The law provided royalties to artists on sales after the work leaves the artists’ ownership, on the grounds that artists often fail to enjoy the benefit of an increase in value in their works. Such royalties are more common in Europe, but they are controversial there, too. Opponents argue that it is a deterrent to art trade, and in any event while there is a patchwork of laws, encourages sellers to forum shop to avoid the royalties.
It appears that the much-maligned “monkey selfie” case is destined for a quick exit. The U.S. District Court for the Northern District of California posted a brief order expressing the sentiment of the presiding judge as expressed at a hearing on a defendant’s motion to dismiss. Specifically, the Hon. William H. Orrick made a tentative ruling that the photograph of a crested black macaque cannot be copyrighted on behalf of the animal itself.
Topics: Copyright Act, People for the Ethical Treatment of Animals, monkey selfie, Congress, PETA, David Slater, Copyright, Blurb Inc., Naruto, Hon. William H. Orrick, authorship, Cetacean Community v Bush, Ars Technica
We reported in September on the lawsuit filed in California over the so-called “Monkey selfie” that underscored some of the limits of copyright protection. One of the defendants, Blurb, Inc., the publisher of photographer David Slater’s picture, has moved to dismiss, and People for the Ethical Treatment of Animals has responded. The back and forth is, well, something akin to the infamous barrel full of monkeys.
Topics: People for the Ethical Treatment of Animals, Blurb, monkey selfie, Compendium of U.S. Copyright Office Practices, Wildlife Personalities., PETA, David Slater, Copyright, United States Copyright Office
A recent injunction ruling that prohibited the destruction of the “Bicentennial Freedom Mural” in Corona, California had occasion to consider the rights asserted by the plaintiffs and artists under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A. The order ultimately granted the injunction but on different grounds, holding that the plaintiffs were unlikely to prevail on their VARA claim.
Topics: work of recognized stature, Mural Conservancy of Los Angeles, 555 U.S. 7, Moral Rights, United States Army Corps of Engineers, Cal. Civ. Code §§ 987 and 989, Inc., Visual Artists Rights Act of 1990, California, Santa Ana River Mainstem Project, Pippa Loengard, 54 U.S.C. § 306108, VARA, Kernochan Center for Law Media and the Arts, Corona, Ronald Kammeyer, Columbia Law School, Phillips v. Pembroke Real Estate, Copyright, Prado Dam, NHPA, Administrative Procedure Act, National Historic Preservation Act, 17 U.S.C. § 106A(a)(3)(A)-(B), 459 F.3d 128, 5 U.S.C. §§ 701-706, Winter v. Natural Res. Def. Council, SARM
The fusion of street art, high fashion, and the law is hardly new, but the Italian designer Moschino’s latest foray into this genre has landed the company in court. Joseph Tierney, a well known graffiti artist who works under the pseudonym “Rime”, filed a complaint against Moschino and its creative director, Jeremy Scott, alleging copyright infringement, trademark violations under the Lanham Act, and unfair competition, and appropriation of name and likeness under California law. Moschino’s allegedly unauthorized use of his work has harmed the artist in numerous ways, Tierney alleges, not the least by opening him up to accusations of selling out. In the words of Tierney’s complaint: “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.” This theory of harm was something we talked about at the "Copyrights on the Street" panel at the Copyright Society of the USA meeting in Newport this year, and it is now being put to the test.
Topics: Joseph Tierney, copyright management information, Vandal Eyes, Digital Millennium Copyright Act, Rime, The Wall Street Journal, Graffiti Art, 17 U.S.C. § 1202, Gigi Hadid, Trademark, Hollywood Reporter, Jeremy Scott, Copyright, Moschino, Lanham Act, The New York Times, intellectual property