There was some cringing when singer Kate Perry strode the red carpet at this year’s Metropolitan Museum of Art black-tie fashion party wearing a strapless black dress decorated with graffiti. “Come on, Katy Perry! Graffiti belongs on the sides of walls, not on red carpet gowns!” wrote one entertainment reporter.
There was also infringing, alleges a street artist, who claims in a federal lawsuit that the Italian fashion house and designer behind the runway dress incorporated a replica image of a mural he spray-painted in Detroit without his consent.
Joseph Tierney, who goes by the trade name “Rime,” claims in his suit that “Vandal Eyes,” the mural he painted in 2012, is a copyrightable work just like a book, movie or painting. And he alleges that the defendants, luxury Italian label Moschino and and designer Jeremy Scott, made him an unwilling participant in a publicity stunt that compromised his credibility.
“In particular, 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,” the lawsuit says. “To anyone who recognizes his work, Plaintiff is now wide open to charges of ‘selling out.’”
Moschino, in a statement Thursday, said it would “vigorously defend” itself. “Many of the allegations, especially the inflammatory and gratuitous allegations of wrongdoing are false,” the company said.
There’s no reason why graffiti artists can’t be covered by the same rights granted to other visual artists, says Case Western Reserve University law professor Aaron Perzanowski, who teaches intellectual property law.
To be copyrightable, artwork needs just two things: some originality and to be “fixed in a tangible medium of expression.” That can be a canvas, film or audio. In Mr. Tierney’s case, a brick-lined wall.
Street artists asserting copyright protection over illegal graffiti can risk prosecution by exposing their identity in court, a consequence that can outweigh the legal benefits of intellectual property rights.
But whether the graffiti is outlaw art or commissioned isn’t really a factor when it comes to federal copyright law. And Mr. Tierney says his mural was legal anyway, sprayed at the invitation of the property owner in Detroit.
“At that point, it becomes pretty much your typical copyright case,” Mr. Perzanowski told Law Blog.
He said the defendants could try to challenge the claim by arguing the dress’s homage falls into the fair use exception in copyright law, which gives leeway to creative works. Fair use can apply to situations in which the original work has been “transformed” into something different, like a satire or parody.
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