She’s done it again. Katy Perry has found herself in the middle of yet another scandal. Ignoring the suggested theme of “Chinese exhibition,” Perry attended the 2015 Metropolitan Museum of Art’s Met Gala in an Italian high-fashion Moschino gown featuring a graffiti design. Etiquette and possible fashion faux pas aside, there was one other glaring problem with the couture – the graffiti designs were blatantly stolen from a well-known artist, Rime.
Rime (aka Joseph Tierney) is a renowned street artist à la Banksy. The gown prominently features Rime’s work Vandal Eyes, created in 2012 for the street art collective The Seventh Letter. Rime claims to be picky in who he’ll work with and actively avoids over‑commercialization, so far only collaborating with Disney to reinterpret Mickey Mouse in 2008, and Adidas and Converse on limited-edition items. Moschino, however, not only failed to ask Rime’s permission but also took things a step further by superimposing its own brand names in the same style as if they were part of the original work and even including fake signatures by Rime on the clothing, in advertisements, and in media photographs. And Rime is upset about much more than the literal misappropriation of his work, he’s also upset about his reputation. The complaint states, “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.” Talk about a back handed compliment!
The complaint includes claims of copyright infringement based on the gown; falsification, removal and alteration of copyright management information based on the fake signatures and added Moschino brand names; claims of unfair competition based on the falsification of Rime’s signature on the collection, making it look as if Rime worked with Moschino on the couture; claims for right of publicity based on the use of Rime’s name, and negligence.
Copyright in Graffiti
Graffiti inhabits a unique space in the art (and legal) world. Often it is simultaneously art and vandalism, because graffiti is famously done on the sides of buildings, bridges, and generally in public places, that is, places where the artist does not own the “canvas.” Thus graffiti normally spans at least two legal fields, copyright law and property trespassing. Copyright law because it clearly can be copyrightable (original works of authorship fixed in a tangible medium for more than a temporary period), and trespass because graffiti artists often paint without permission in places where they should not be or where they are not necessarily welcome. Furthermore, although graffiti is certainly in the public sphere – outdoors and freely viewable – it is not necessarily in the public domain – belonging or available to the public and not subject to intellectual property rights. The artist still has rights.
So, how can Graffiti artists protect their works, if at all? First, it’s worth noting that physical graffiti created without permission of the property owner seems to be entirely subject to the property owner. That is, they can paint over or destroy the object with graffiti on it, but they are not free to recreate it. They can paint over it because their physical property rights most likely trump whatever rights the owner has to the actual graffiti, after all, it’s their wall, they can do with it what they like. But copyright, at its core, is an intellectual property right. So, the right to the design and art lives with the artists, despite the wall (and any graffiti on it) being owned by someone else. This is why an artist can sell someone a painting, but can then sue when that person tries to sell t-shirts with copies of the painting on them. Similarly, this is why Rime can stop Moschino from using Vandal Eyes in its collection without compensating him, it may have been in the public sphere, but it was definitely not in the public domain.
Another possible avenue graffiti artists can use is the Visual Artists Rights Act of 1990 (VARA). VARA grants several moral rights to exclusive copyrightable works. Moral rights are a prominently European creation, and come from the idea that art is an emanation or manifestation of the author’s personality. There are three basic moral rights, (1) disclosure, meaning the author chooses whether to create the work, when it is complete, and whether, when, and how, to disclose the work; (2) attribution, the right to be identified by name or pseudonym in connection with the art and prevent others from claiming authorship; and (3) integrity, the right to prevent unauthorized alterations and changes to works. VARA was enacted to bring the USA in line with the Berne Convention, which requires signatory countries to recognize and respect the copyrights of other nations in the same way they recognize the works of their own nationals. The Berne Convention required the rights of attribution and integrity be recognized, but did not prohibit the waiver of those rights, although they are inalienable in many Berne Nations.
VARA extends the waivable rights of attribution and integrity to authors of “works of visual art,” which is defined further in the Act. Due to the illegal nature of graffiti, the right of attribution can be especially tricky because the works are often unsigned or signed using a pseudonym, and thus potentially easy to replicate or falsely claim authorship. You only have to google “fake Banksy” to see the issue in action. “Works of visual art” include paintings, drawings, prints, or sculptures that have a single copy or are a limited edition, consisting of 200 or less signed and consecutively numbered works. VARA allows the author to prevent any intentional distortion of their work and to prevent the destruction of a work of recognized stature, including intentional or grossly negligent destruction. However, graffiti artists so far have had a tough time using VARA to protect their works. In the 1997 unpublished case of English v. BFC& R. East 11th Street, the court found that “illegal murals could not be protected” under VARA, seeming to exclude most graffiti from the act. 1997 U.S. Dist. LEXIS 19137 (S.D.N.Y. Dec. 2, 1997). And in 2013, the Court declined to issue a preliminary injunction thus allowing the building referred to as 5Pointz to be whitewashed pending its destruction. Cohen v. G&m Realty L.P., 988 F.Supp. 2d 212 (E.D.N.Y. 2013). The artists in 5Pointz had actually received permission to paint on the building, and had been creating murals there for at least forty years while the owners decided what to do with the property. In that time, it earned the name 5Pointz and became a tourist attraction and “Mecca” of graffiti. The court refrained from deciding whether any of the murals were works of “recognized stature,” stating that was best left for trial, but by denying the preliminary injunction rendered the whole thing a moot point once the walls were painted over.
Rime is “lucky” insofar as his misappropriation and copyright infringement claims are pretty clear-cut, he will not have to resort to the tougher standards of VARA. Nevertheless, the viability of graffiti as art is often debated, and maybe that is really the whole point.