Back in August, we covered the outrage surrounding Katy Perry’s attire to the Annual Met Gala. The scandal was twofold, first, Perry’s gown featured an avant-garde graffiti design when the Gala theme was clearly “Chinese exhibition,” and secondly, the graffiti design was taken and used without the artist’s permission, constituting copyright infringement. Ergo; our last post focused on the legality of graffiti, as a clearly copyrightable work, framed in terms of the public sphere versus the public domain, and moral rights. Rime, who created the stolen work, sued Italian luxury fashion house Moschino, and now Moschino has formally responded.
What did the Five Fingers Say to the Face? SLAPP!
On December 7, 2015, Moschino filed a motion to strike the entire complaint pursuant to California’s Anti-SLAPP statute. SLAPP stands for “strategic lawsuit against public participation,” generally used by the “bad guys” to censor, intimidate, and silence critics by bringing a lawsuit, with all the costs and hassles that come with it. Generally, SLAPP plaintiffs do not expect to win their case, and their suits are nearly always frivolous with the goal of squelching free speech. Thus, an Anti-SLAPP statute is designed to protect against those types of suits, and is meant to balance the rights of persons to file suits for injury and the constitutional rights of persons to exercise free speech. Not every state has an Anti-SLAPP statute, though the general test asks:
- Has the defendant met the threshold burden of showing that their acts arose from protected activity; and
- If the defendant met that burden, the court examines if the Plaintiff showed a probability of prevailing on their initial claim.
California, legal gem that it is, has a slightly different test asking whether this is a free speech issue involving a (1) public issue that is (2) subject to a motion to strike. It’s important to note that both tests focus on the merits of the initial complaint. Even more importantly, the winner of a SLAPP motion can get the other side to cover attorney’s fees. Anti-SLAPP motions are a great tool because they completely pause the case until they’re decided. With a straight motion to dismiss, discovery can begin while the motion is being litigated; however, Anti-SLAPP motions, because of their focus on protecting speech and reducing costs, stay discovery. And here’s the good bit, even if the plaintiff drops the suit, you can continue for a ruling on your Anti-SLAPP and be awarded fees.
So what seems off here? It looks like the wrong party filed an Anti-SLAPP suit. Moschino is unquestionably the “bigger fish” in this situation, so it’s an interesting tactic to go the Anti-SLAPP route (when typically, such an entity would be the one filing the SLAPP suit). This is an especially bold move since it is undeniable that they used Rime’s artwork without his permission.
Basically, Moschino argued that because “fashion creations are considered ‘expressive works’ protected under the First Amendment,” their gown is “a vehicle to communicate and connect with the world,” defeating Rime’s copyright claims. Specifically, putting graffiti on “ultra-expensive clothing” is a social commentary on the way society objectifies women, according to Moschino, and is protected by the First Amendment.
Competing Constitutional Claims – The Copyright Clause versus the First Amendment
Moschino’s argument, clothing as commentary, is not entirely without legal basis. In fact, there are several U.S. Supreme Court cases dealing with clothing and free speech. Famously, in 1969, the court held that schools may not ban students from wearing black armbands in protest of the Vietnam war. And in 1971, they overturned a man’s conviction for disturbing the peace based on wearing a jacket in a courthouse with “F*** the Draft” on it, emphasizing that wearing the jacket was speech and not conduct. An important difference here is that none of these cases involved copyright protection, another constitutionally endorsed and protected right.
Article I, Section 8, Clause 8 of the Constitution empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This is generally referred to as the Copyright Clause. So, it’s important to realize that the Copyright Clause and the First Amendment work in tandem to foster creativity and freedom of expression, although, as with most things in the law, some balancing is needed. Expression (speech) is a fundamental right rooted in the autonomy and dignity of a person and the intimacy of their thoughts, which is why even terrible speech will not be silenced (looking at you, Cotton Eye Joe).
Copyright law, on the other hand, provides protection for the creator of an expressive work, allowing that creator to control the flow of certain information. Meanwhile, the First Amendment works to ensure the free flow of information. Copyright law, and all intellectual property law, reduces access to information by limiting the extent it can be copied by others – technically it is all a form of censorship.
BFFs: Protecting Art & Promoting Speech
Copyright law provides balanced protection through two means: the idea/expression dichotomy and fair use. First, copyright cannot protect ideas, facts, methods of operation, or scientific principles, the only thing it protects it the expression of those things (think of it as protecting the style something is done in). Thus, the idea/expression dichotomy limits the scope of copyright protection by separating an idea from the expression of an idea. Copyright basically limits the copying of an author’s particular way of expressing or explaining facts and ideas. This strikes a balance between the First Amendment and the Copyright Act by allowing the free communication of facts and ideas while still protecting an author’s personal expression.
Secondly, the fair use doctrine operates as a sort of “safety-valve” for the First Amendment in light of copyright law. Fair use allows a copyrighted work to be used for criticism, comment, news reporting, teaching, and scholarly works. This is why you can quote an author in your term paper, but not turn in a chapter of the book you read as your own work. There are four fair use factors courts consider when a use does not cleanly fall into one of the statutory categories:
- The purpose and character of the use, including whether it is commercial or for nonprofit educational purposes;
- The nature of the copied work (e.g., is this high art or a news article?);
- The proportion copied from the original work (e.g., a little or a lot); and
- The effect of the potential market or value on the copied work.
The first factor looks at the purpose of a work; the general rule is that if that purpose is primarily financial this leans against finding a fair use. Simply because something can be sold does not necessarily mean that a work has a commercial nature, for example, creating a unique sculpture would likely not be a commercial purpose even if that sculpture is sold. The second factor examining the nature of the work tends to afford more protection to works of fiction than nonfiction. The third factor looks at how much is copied, the more that is copied the less likely a court will find fair use. Further, if the most important part, or “heart” of the work is copied, even if it’s a relatively small part overall, a court is unlikely to find fair use. Finally, the court looks at whether the new work has harmed the commercial value of the old work, the more harm, the less likely there will be fair use. No single factor is predominant; a court must balance all four factors before making their decision.
So how likely is it that Moschino will prevail with their Anti-SLAPP statute? Considering the First Amendment balancing protections contained within the Copyright Act, this author thinks Moschino may have made a strategic mistake. Although speech is definitely protected under the First Amendment, and clothing can definitely be speech, the First Amendment does not automatically trump copyright law. Further, for all that fashion is art, under copyright law clothing is a useful article, meaning that only the designs on the actual fabric can be protected, not the overall clothing design itself. Thus, because Moschino misappropriated artwork and printed it on the fabric of its gown, this case is more similar to forging a painting than protesting the draft or the Vietnam war. As always, it’s impossible to know what a court will decide, but this author will keep her “Legal Eyes” on the decision.