ASK THE ART LAWYER. If Graffiti or Street Art is Created Illegally, Should The Author Benefit from its Copyright Protection?

An Interesting Development in the Joseph Tierney vs. Moschino S.p.A. Case

By Octavio Robles, AIA, Esq.

In a previous two-part ARTDISTRICTS series about graffiti and street art published in December 2015 and February of this year, the concept of copyright protection for those two forms of expression was discussed. The traditional concept of the right to the image, even if illegally created, was presented as the generally accepted legal standard. The lawsuit that was brought by Joseph Tierney, also known by his street name, “Rime,” and its recent developments are changing that presumption.

Tierney brought suit against the Italian design firm Moschino S.p.A. and its creative director Jeremy Scott in 2015 after Moschino and Scott allegedly used a Tierney street art image called Vandal Eyes and the “Rime” signature in their Graffiti Collection without permission from him. The lawsuit claimed copyright and trademark infringement among other technical legal claims and demands the destruction of all products, the proceeds from their sale and unspecified damages to be determined by the court.

WAS VANDAL EYES VANDALISM?

The defendants filed a motion to dismiss last January arguing several technical legal issues addressing all claims made by Tierney. Defendants also argued that although Moschino did not move to dismiss Tierney’s copyright infringement claim on the merits, that defendant Scott did move, as to all of Tierneys’ claims, that Tierney did not properly alleged Scott’s involvement in Moschino’s alleged actions and therefore the case should be dismissed. The judge denied the defendants’ motion to dismiss on all counts and found that Scott was in fact involved in the alleged acts because of his position as Moschino’s creative director. Therefore, both Moschino and Scott continued as defendants in the case. The judge went on to mention that the defendants argued that Tierney may not have standing to bring the copyright infringement lawsuit in the first place but did not elaborate. Standing refers to the right of a party to initiate the lawsuit in the first place. The matter was argued apparently without being fully briefed in an attempt to dismiss the entire case outright. He further ruled that the issues should be addressed in a subsequent motion for summary judgment and set the dates when motions and replies were to be submitted, with a hearing set for May 23, 2016.

What makes the development of this case extraordinarily significant to graffiti and street artists is the substantive argument by the defendants in their motion for summary judgment that the reason why Tierney did not have standing to sue for copyright infringement in the first place is because although it is an agreed fact that Tierney did create the graffiti, he did not have any copyright to it and therefore there is no infringement.

Kamagra kaufen now to have a pleasant life with your partner even after you levitra online canada realize that you can get the most up and coming fragrances at the best costs around. A few of the problems which many people suffer from after opting these brand viagra 100mg medicines are frequent mood swings, itching of skin, irritation, depression and other such problems. Now, it is familiar that people with diabetes are suffering from libido. generic levitra india Avoid Being Worried or Stressed about ED It is important to watch your cholesterol levels but it turns out that cholesterol is not the whole story when it discount viagra comes to plaquing up the arteries.

Street artist Joseph Tierney (“Rime”) brought suit against the Italian design firm Moschino S.p.A. and its creative director Jeremy Scott in 2015 after Moschino and Scott allegedly used a Tierney street art image called Vandal Eyes and the “Rime” signature in their Graffiti Collection without permission from him. Image of Vandal Eyes in a wall of Detroit. © Joseph Tierney.

AN “UNABASHED FELON”

Defendants, in their motion for summary judgment call Vandal Eyes a “brazenly unlawful and felonious act” and “an unapologetic act of trespass and vandalism” and therefore not entitled to copyright protection. They go on to call Tierney “an unabashed felon” who did not have the authority to enter the property and spray-paint Vandal Eyes on its wall. Tierney claims that he in fact had permission, but according to the defendants, he did not. The defendants creatively used one of the most famous unsolved mysteries in California’s history as the basis for their argument that Tierney lacks a valid copyright. The case was called the “Black Dahlia” murder. In that case, the killer hacked up the victims’ bodies and arranged and photographed the pieces in an original and artistic way. When the photos of the criminal’s body parts layouts were distributed by police and the media in their attempt to apprehend the killer, they were concerned that the killer would sue them for copyright infringement. They argued that “such an audacious claim would probably be rejected.” Similarly, they argued that “copyright is a government granted monopoly and a privilege given only to those that promote the progress of science and useful arts and there would be no reason to think that felons should be rewarded with a government-sanctioned monopoly for the tangible fixation of their felonious activity.” Effectively, they argued that willful violations of the law, particularly a felony, which painting illegal graffiti apparently was, should not be rewarded with the benefit of copyright.

Because Tierney’s graffiti is a product of an illegal trespass and vandalism, as a matter of public policy and basic logic, it does not make any sense to grant legal protection to illegally created work. The work does not have copyright protection and, as such, defendants did not infringe on the artist’s lack of copyright. Because most acts of vandalism involving graffiti are done anonymously, there are few cases to cite as reference. The only case involving illegal graffiti and its copyright strongly implied that when done illicitly, there is no copyright protection. Similarly, the defendants argued that works that are infringements themselves or works that are deemed legally obscene are not entitled to copyright protection. Therefore, if the work lacks copyright protection, the author would lack standing to bring a lawsuit for the infringement of a copyright that does not exist.

THE COPYRIGHT ACT IS NEUTRAL

According to the memorandum in opposition to the defendants motion for summary judgment, Vandal Eyes was allowed as part of a Detroit beautification program to combat illegal graffiti and therefore did not constitute trespassing. Additionally, Tierney’s attorneys contend that even if it was an unauthorized work, the Copyright Act is “neutral” on the applicability of copyright protection for illegally created works. Summary judgment is granted when there are no issues of material fact. Because there are several such issues of fact to be determined, it is highly unlikely that the court will rule on the case’s merits. The issues to be determined are, for example, whether Tierney had permission to paint Vandal Eyes, whether vandalism is a defense to copyright infringement, whether Tierney trespassed and if there a felony involved, among others. Therefore, it is likely that this case will be settled or goes to trial. If it goes to trial, it will establish interesting precedents that will undoubtedly affect countless street and graffiti artists for years to come. Stay tuned.

Octavio Robles, AIA, Esq. is a legal contributor to ARTDISTRICTS and a member of the Florida Bar and federal Southern District of Florida Bar. He is a Florida Supreme Court Certified Mediator and Approved Arbitrator; a member of the Construction Committee of the Real Property, Probate and Trust Law Section, the Art and Entertainment, and the Alternative Dispute Resolution Law sections of the Florida Bar; and a member of the American Institute of Architects, Art Deco Society of Miami and Copyright Society of the USA. He holds licenses as a registered architect, state-certified general contractor and real-estate broker in Florida and is a LEED-accredited professional. He received his Juris Doctor degree from the University of Miami School of Law in 1990. He holds master’s degrees in architecture and construction management and a bachelor’s degree in design, all from the University of Florida. His practice is limited to art, design, architecture, construction and real-estate law.