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Fair Use Fashion? Or Stolen Street Art?: Examining Copyright Protection for Graffiti through Katy Perry’s Moschino Gown

Published onNov 17, 2015
Fair Use Fashion? Or Stolen Street Art?: Examining Copyright Protection for Graffiti through Katy Perry’s Moschino Gown

“The people who run our cities don’t understand graffiti because they think nothing has the right to exist unless it makes a profit.” – Banksy

Photo by ivabellini via Flckr

At the 2015 Metropolitan Museum of Art Gala in May, Katy Perry walked the red carpet in a stunning Moschino gown bearing a graffiti print strikingly similar to a 2012 mural painted by street artist Joseph Tierney in Detroit.  Since the appearance, Tierney has filed a lawsuit in federal court against Moschino, a well-known Italian fashion house, for replicating his art without consent.  Tierney claims that graffiti qualifies for copyright protection as an original work fixed in a tangible medium, which if true, precludes reproduction and replication for commercial use. 

In his complaint, Tierney, also known as “Rime,” alleges that Moschino and designer Jeremy Scott used Tierney’s artwork on their highest-profile apparel without his knowledge or consent.  In fact, Moschino even included a replica of Rime’s signature in both the gown and advertisements for its “graffiti-inspired” line.  Specifically, Tierney claims violation of Section 43(a) of the Lanham Act, unfair competition under California law, and appropriation of name and likeness under California law.

Tierney’s predicament is not the first of its kind and the debate over whether or not street art, or graffiti, warrants copyright protection is a pivotal intellectual property issue.  The debate intersects where real property law meets intellectual property law, since street art is defined by being artwork created on a substantially fixed object.  First, to be clear, graffiti is classically defined as “writing or drawings scribbled, scratched, or sprayed illicitly on a wall or other surface in a public place.”  While it is widely agreed that graffiti as vandalism is illegal, a new breed of street art has emerged where artists are given permission to paint on buildings or public places.  Because these works of art are not technically illegal, legal scholars agree that there’s no reason why rights granted under copyright law cannot apply to street art.  While copyright protection may be available, there is nothing granting the artist rights to the underlying medium, which may be altered or destroyed with little regard to the art affixed to it.  Applying these principles to Tierney v. Moschino, Tierney cannot claim personal property rights to any of Moschino’s apparel, but he may be able to claim copyright protection over his 2012 mural, “Vandal Eyes.”  In response, Moschino will most likely claim “fair use,” and attempt to show that the copied mural was sufficiently transformed through its use on the gown.

Photo by A Syn via Flckr

The legal claims in Tierney v. Moschino will pave the way for a bigger cultural issue: whether or not graffiti will be endorsed as “real art” when its purpose is both artistic and criminal.  Currently, as Moschino has so fashionably emphasized, the street art that is created with great risk and little reward by the artist can be replicated with ease at great financial gain to the replicator.

*Alexandra Braverman is a fourth year JD/MBA student at Wake Forest University School of Law and School of Business.  She holds a Bachelor of Arts in Political Science and Anthropology from the University of California at Berkeley.  Upon graduation, she intends to pursue a career in corporate law.

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