Rime and reason? Fashion flare-up over vandal-eyes'd graffiti

Not all members of the Kat family are equally well-informed when it comes to ladies' fashions; this is a potentially serious omission, given the number of felines over the years who have involuntarily donated their fur for the sake of adorning the female of the human species [some Kats have long been puzzled by the fascination for fur coats, having never felt the temptation to wear a coat made of human fur].  Fortunately, there are some kind and helpful souls who come to the aid of this particular Kat when high fashion is at stake -- and here's a guest piece by Katfriend Emma Perot to exactly that effect:

The most exclusive fashion event of New York’s social calendar, the Met Gala, has come and gone. Avid fashionistas will recall Rihanna’s mustard-coloured ensemble and Beyoncé’s barely-there bedazzled gown. Less noticeable, however, was Katy Perry’s graffiti-themed Moschino dress which featured a fitted bodice and flared skirt adorned with a graffiti design in bright primary colour [one of the Kats blushes here, having a vague recollection of ordering a large moschino from his local coffee shop ...]. The dress was paired with long gloves, embellished with sprayed lines and accessorised with a spray-paint can handbag. It was slated by the Fashion Police for being underwhelming on the red carpet, but now this dress is in the spotlight after grabbing headlines for copyright infringement.

The plaintiff, graffiti artist, Rime (Joseph Tierney), has initiated a claim against Moschino Fashion House and designer Jeremy Scott for alleged infringement of copyright, a false designation of origin under s.43(a) of the Lanham Act [= 15 USC § 1125] and breach of his right of publicity. The action is based on the copying of Rime’s 2012 piece, “Vandal Eyes” on Katy Perry’s dress as well as use of Rime’s name on pieces in Moschino’s autumn/winter 2015 collection.

Copyright

According to the US Copyright Act, copyright subsists in original work that is fixed in a tangible medium. The originality standard is a minimal degree of creativity as stipulated in Feist Publications v Rural Telephone Service Co., 499 U.S. 340 (1991). Given the low threshold for protection, Rime’s graffiti piece, ‘Vandal Eyes’ is likely to attract copyright protection. The stylized letters spelling out the word ‘Vandal’ and menacing eyes depicted in Rime’s work are creative, if not attractive, in this writer’s view. The work is also fixated on a brick wall in Detroit.

A classy chassis ...?

There is no denying that the dress is inspired by graffiti, as the spray-paint handbag indicates. For added certainty, Katy Perry made her red carpet appearance after exiting a spray-painted Rolls-Royce [Merpel feels that the manufacturers of Rolls-Royce motor cars, works of art in their own right, ought to have some moral right to stop this outrage]. For those unfamiliar with Rime, he has painted in 15 countries and has worked with adidas and Converse, so it’s unlikely that Moschino’s Jeremy Scott designed the dress solely from his imagination – the more so since Scott is apparently notorious for incorporating famous brands and characters into his design and Rime’s name was used on other pieces in the collection.

With independent creation ruled out, the question that then needs to be addressed is whether the Moschino dress has copied a substantial part of Rime’s artwork. While the colours used on the dress are brighter than those on the brick wall that displays Rime’s piece, the menacing eyes on the skirt of the dress are nearly identical. The word is not fully discernible from the photographs, but the last two letters ‘A’ and ‘L’ are the same as the graffiti. Additionally, the letters on the dress bear the same dark pattern of polka dots above a wave as the graffiti, although the pattern is more defined on the dress. The red letters are also outlined in white in and there are drip marks on the ‘L’. With such substantial similarities, it appears that life has imitated art in this instance.

s.43(a) Lanham Act

Rime’s name in itself is not protected by copyright but can be protected under s.43(a) Lanham Act. The section prohibits false designations of origin likely to cause confusion or deceive as to affiliation, as to the origin or approval of goods. A mark does not have to be registered to rely on this section and names are explicitly protected. The test for determining infringement is set out in Polaroid Corporation v Polarad Electronics Corporation 287 F.2d 492 (2d Cir. 1961).

In applying the Polaroid factors, Rime’s pseudonym is distinctive, making it more likely to be considered a strong mark. The letters used on the fashion items unmistakeably spell out this name in graffiti-style writing. It is arguable that Rime will ‘bridge the gap’ by expanding into high-end fashion as he has already licensed his designs to adidas and Converse. However, his lawyers have explicitly stated that he is selective in licensing his work. Casual footwear and high end fashion are cut from a different cloth so this factor is unlikely to be made out.

The bad faith factor is understood as meaning that the mark was used with intent to cause confusion. The documents filed at the District Court in California only provide two examples of the use of Rime’s name on clothing but allege that it was also used in advertisements and media photographs. Moschino has used many iconic cultural references in the past, most notably McDonald’s, Barbie and Hershey’s. Moschino secured a licence from McDonald’s but the writer is unsure as to whether they did the same for the other brands. Moschino’s extensive use of well-known marks and characters means the bad faith factor will probably not be made out.

Rime’s main hurdle to overcome is the factor of similarity of products, since graffiti and clothing are at issue. Even if classified as a service, graffiti painting is unlikely to be considered similar to clothing design, although the two can evidently interact. The quality of the products is difficult to compare because of these differences. Moschino’s customers are sophisticated in that they will exercise a certain amount of care in choosing their clothing. These consumers are unlikely to be confused between the name Rime and the use on the fashion items because many of them are likely to be familiar with Moschino’s approach to fashion.

Past collections have parodied the famous brands and are unlikely to cause confusion as a result. This could explain why Moschino has not faced more legal action, as parody is a judge-made category of the fair use defence. Rime’s case is different in that the use of his name appears to pay homage to the art form.

Based on the Polaroid factors, Rime’s case for infringement for use of his name could go either way. While the way in which his name is used in the collection could cause confusion among consumers who are aware of his deals with other brands, Moschino’s characteristic use of cultural references may mean that its customers would not be confused about a link between the two entities, but would rather merely call Rime to mind. The writer would like to hear readers’ opinion on how a court might rule on this issue.

Publicity

Infringement of the right of publicity is the third cause of action under which Rime brings his claim, presumably also on the basis of the use of his name. Under s.3344 of the California Civil Code, a person who makes use of another’s name on products for the “purpose of soliciting purchases … shall be liable for any damages sustained by the person injured as a result.” Unlike s.43(a) Lanham Act, there is no requirement of confusion, so use that causes damage would be sufficient.

Taking the Mickey ...?

The main issue here would be proving damage. Rime’s lawyers have stated that “his credibility as a graffiti artist was compromised by inclusion in such a crass and commercial publicity stunt.” The writer fails to see how use of Rime’s name would affect his credibility considering that he created his own interpretation of Mickey Mouse for Disney, but the writer’s knowledge of graffiti as an art form is limited to Banksy so she is not in a position to judge.

Damages are awarded based on “the greater amount of $750 or actual damages suffered and any profits from that unauthorised used that are attributable to such use.” Rime may have difficulty in proving that sales of Moschino’s collection are attributable to the use of his name on the fashion items. The writer is unaware of the proportion of Moschino customers who were also Rime devotees would have purchased the items because of the use of his name, but she is confident that Rime’s lawyers have already worked out the calculations.

With a brewing legal battle between a fashion powerhouse and an eminent graffiti artist, designers would be well advised to take care when treading the fine line between inspiration and imitation. The writer suspects that Moschino took a calculated risk with these designs and wonders whether they will secure licences in the future. In the meantime, Katy Perry is happy to be in the news for something other than her feud with Taylor Swift.