28 Jun 2016

Graffiti art continues to provoke legal battles worldwide

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The dresses worn at the annual Metropolitan Museum of Art Gala usually gather media attention, but rarely end up in the legal press. However, a dress worn by Katy Perry at last year’s gala has not only landed her in a number of “worst-dressed” lists but has also sparked a bitter legal dispute.

The dress in question was designed by Jeremy Scott for Moschino as part of his 2015 fall collection, and features a graffiti design. Following the publication of photographs showing Katy Perry wearing the dress, the graffiti artist Joseph Tierney (aka “Rime”) launched a claim in the Californian courts against Scott for copyright infringement on the basis that the graffiti on the dress was copied from his graffiti artwork. To add to the red carpet setting of this dispute, Scott was reportedly served with the claim at his own film premiere.

Tierney claims that his graffiti works have been copied by Scott in this dress and in other items in the collection. Tierney is seeking damages (based on the benefit of increased profits in the collection which Tierney claims Scott and Moschino would have made from the “misappropriation” of his creations), lawyers' fees and delivery up and destruction of the offending garments.

From a copyright perspective, the most interesting aspect of this case is the defence raised by Scott. His lawyers argue that the graffiti works are “created illegally”, and therefore should not be granted copyright protection “as a matter of public policy and basic logic”.

It is not explicitly stated in UK, American or international laws, whether works “created illegally” should benefit from copyright protection. However, although it has been reported in some newspapers, it is not accurate to say there is no authority as to whether graffiti art has copyright protection at all. In a UK High Court decision last year about a piece of Banksy graffiti art, it was suggested by the judge (Mr Justice Arnold) that Banksy would have copyright in the graffiti work even though it was painted illegally on the wall. Also, in a judgment from the German Supreme Court in 1997, it was held that graffiti art on the Berlin Wall benefited from copyright protection despite the fact that it also amounted to an act of criminal damage.

With the rise of graffiti art being detached and sold like other painted works, a judgment going against these European decisions, and instead holding that graffiti art is not subject to copyright, could be a game changer for the industry. Although a settlement was reported between Scott and Tierney (but not Moschino) in April 2016, the case has been re-opened in May and – for the sake of the art law world – it is hoped that the case will proceed to judgment.

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