Breaking laws of fashion at the price of Intellectual Property rights
Jeremy Scott is, since 2013, the creative director for the Italian luxury fashion house Moschino. He is famous in the business for, at least in the eyes of many fashion interested, breaking the laws of fashion through his controversial, daring and playful design creations.
Jeremy Scott´s design have, though, been up for discussion concerning possible intellectual property infringements in earlier collections (see e.g a/w 14/15 – possible trademark infringement on McDonalds). Obviously, it was not the last time someone would question the legality of Mr Scott´s design because now, Jeremy Scott & Moschino have been sued once again. The object of today´s lawsuit is the dress that the singer Katy Perry wore on the Met Ball in May this year (2015). The lawsuit was filed in a federal court of California the 5th of August.
One reason to the lawsuit is, according to the filed documents, that the design of the Moschino dress constitutes a claimed copyright infringement of the Brooklyn street artist Joseph Tierney´s (alias; Rime) graffiti art. It is claimed that Moschino / Jeremy Scott have used Rime´s street art on the apparel without the consent or knowledge of the plaintiff (käranden Rime).
Due to the filed documents, the laws that are claimed to possibly have been violated, is (concerning copyright- & trademark infringement) 17 U.S.C. Section 101 & Section 43(a) of Lanham Act, for those interested.
In 2012 Rime was invited by a property owner to create a giant mural, titled “Vandal Eyes”, to cover a building in Detroit (Note: the attached pictures shows unrelated street art in Sweden). Due to Rime´s artistic merit the painting attracted attention in the art communities and among the public. The plaintiff have claimed that his art eventually had been photographed and through the use of these photos, Moschino/Jeremy Scott had been able to use the print on their design creations.
So, what is the deal with graffiti art and copyright? In Sweden, graffiti can be protected by copyright, as long as it is considered as a “verk” ( “a creation”). For a creation to be considered as a “verk”, it requires “verkshöjd” (originality). A bit modificated; this certain work of art has to be independent & possess an originality linked to the creator´s personal way to create. This means that street art, such as Rime´s, can obtain copyright protection if these requirements are met.
If this is at hand, it results in that only the right holder possesses the right to make copies & make them accessible to the public. E.g only Rime owns the right to photograph his street art & make it available to others. Because, taking a photograph of a painting is considered as making a copy of it. (To this principal rule there are exceptions such as, in Sweden, “copy for private use” & an interesting one called “the Postcard exemption”).
By applying the legal facts on this case, it is claimed that Moschino & Scott have been creating copies of Rime´s street art, without his consent, by printing it on e.g a dress. By offering these apparel to sale, they also have made it available to the public.
Rime´s mural “Vandal Eyes” was claimed to have been created with the consent of the property owner. This is not always the case, though. Picture the scenario where Moschino / Jeremy Scott instead would have used a picture of another graffiti painting for the apparel. But this street artist had painted on the wall without the consent of the property owner. The street artist would still have copyright protection of his/her work but would most likely not make him/herself known by suing Moschino/Scott.
Because if the artist would, he/she would most likely be claimed to have been committing the crime Skadegörelse (BrB 12 Chapter 1§) (means; vandalism), where the penalty could be up to 1 year in prison.
So, to summarize it all, if you are talented in street art, such as e.g Rime, you can obtain copyright protection for your creations. But a simple advice for you is first to make sure you have the consent of the property owner. Otherwise your piece of art too risks to be part of a Moschino dress such as Katy Perry´s – that made it to a number of worst- dressed lists after the Met Gala. This, without you being able to claim copyright infringement.
Or rather – you will be able to claim it at the risk of going to jail for vandalism.
The case of Jeremy Scott & Moschino vs Rime is to be continued.
It seems like ending up in court is the cost of breaking laws of fashion at the price of Intellectual Property rights.