After Starbucks, American Eagle and Roberto Cavalli, it is now Moschino and its designer Jeremy Scott’s turn (yes, again) to face the latest street art copyright infringement case. Joseph Tierny — a New York artist commonly known as Rime — is accusing Moschino and Scott of “inexplicably plac[ing] [his] art on their highest-profile apparel without his knowledge or consent.” According to the complaint, Scott went as far as putting the artist’s name and a fake signature on the clothing showcased in Moschino's print advertisement. While copyright infringement lawsuits involving visual arts are far from uncommon, street art's burgeoning presence among them calls for a better understanding of its position in the legal realm.
Under U.S. copyright law, protection is granted to “any original work of authorship that is fixed in any tangible medium of expression.” This definition should include both commissioned and non-commissioned art. However, an important question arises concerning the latter: should an illegally-scrawled piece of art (graffiti for example) receive any protection at all? The doctrine of unclean hands states that “one cannot seek protection under the law if he has acted wrongly with respect to the matter of the complaint.” Of course, such a principle could easily be interpreted restrictively to deny non-commissioned street art copyright protection. But nuance, as always, is a recommended approach.
The doctrine of unclean hands only applies when the wrongdoing is relevant to the copyrightability of the work. Although lawsuits involving street art often end in settlements, the few existing analogous cases demonstrate that, as long as "the copyright holders’ actions are not inconsistent with any policy of the copyright laws,” protection should be granted.
Moreover, copyright law marks a clear distinction between the intangible work it protects and the physical embodiment of that work. Thus, the ownership of the surface on which street art is composed is irrelevant to its creator’s rights, as the United States' copyright laws only grant protection over the intangible work.
When it comes to establishing infringement, two elements must be proven: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” The first criterion involves, amongst other elements, the very copyrightability of the work in question. As explained previously, the first criteria is met provided the original work is fixed in a tangible medium and original.
However, because part of an infringement analysis relies on demonstrating "probative similarities between the works," establishing the copying of constituent elements of the work can be a little more complicated. Courts tend to look for mistakes that are common to both the plaintiff's and the defendant's works, as those can rarely be the result of coincidence. However, those do not always exist and art being inherently subjective, the fundamental issues in copyright cases involving visual art can stretch beyond mere legal interpretations into artistic ones. In a domain where many claim their work has been influenced by someone else and where every “new” creation seems to somehow stem from another, where can we draw the line and establish that an artist’s work is completely his? Certain artists do have trademark aesthetics, but are those enough to say that a very similar looking piece of art is necessarily infringing?
The sudden rise in street art infringement lawsuits theses past few years is unsurprising. This particular form of artistic expression has become a favoured object of festivals, museum exhibitions, and even as political gifts. Highly competitive industries like the fashion industry are exploiting street art’s undeniable marketability. As expressed in the complaint against American Eagle, “'street credibility’ is highly sought after by retail brands for the cultural cachet and access to the profitable youth demographic it offers.” Unfortunately, street artists must fend with more than the copyright issues underlying such realizations, as “collaborations with mainstream brands can be especially damaging to the artist’s own brand.” Pursuing these companies to protect their intellectual property is becoming a necessity. “Street credibility” goes beyond aesthetics, with stakes in an artist’s reputation and integrity. As a matter of fact, the complaints against American Eagle and Moschino each make reference to the artists being considered “sell outs” as one of the main damages caused by their association with such corporations.
Of course, these issues have always existed. But street artists have been reluctant to go after infringers. Putting aside monetary issues, for many of them “bringing a dispute to court is anathema, philosophically.” Their desire to paint on the street often stems from an indifference towards the formal art world and everything it entails, but mainstream brands’ sudden interest in street art has left artists with no other option but to fight for their rights. Deterrence from doing so — in the form of vandalism charges — remains for creators of non-commissioned work as fighting for ownership rights over their art also means revealing their identity. But, for the most part, times have changed and counter culture now seems to stop where infringement begins.
Aicha Tohry is an IPilogue Editor and a JD Candidate at Université de Montréal.