McDonald’s recently prevailed on personal jurisdiction grounds in a closely-watched case in California about the use of street art as décor for restaurants in the United Kingdom, but the issue has quickly arisen again. As part of what the fast-food giant has clearly decided is a winning branding strategy, the chain’s use of graffiti from New York has now brought the threat of litigation from the so-called Bushwick Collective. Where any such lawsuit gets filed will have a great deal to do with what happens next.
Topics: Joseph Tierney, Netherlands, Digital Millennium Copyright Act, Rime, California, specific jurisdiction, 17 U.S.C. § 1202, general jurisdiction, Moschino, personal jurisdiction, Graffiti, New York, Dashiell Snow, McDonald's, Street Art, Daimler AG v. Bauman, Virus, NDA, Don Rimx, Beau Stanton, Himbad, United Kingdom, Atomik, Bushwick Collective
Estate of Graffiti Artist Sues McDonald’s Over Fast-Food Décor
The estate of Dashiell “Dash” Snow, better known as graffiti artist “Secret Snow”—has sued McDonald’s over allegedly infringing use of Snow’s street art in McDonald’s dining rooms. The lawsuit in the Central District of California is the latest in a series of cases in which street artists are asserting their rights in copyright without any concession about whether the creation has other legal issues (i.e., trespassing or vandalism). Based on the survival of other recent similar cases, this latest case could be a headache for the giant restaurant chain, though it may have interesting fair use arguments based on the contrasting nature of the street vs. corporate uses.
After reports of a settlement proved premature, designer Moschino S.p.A. and its creative director Jeremy Scott have moved for summary judgment on the copyright claims filed last year by street artist Joseph Tierney, better known as “Rime.” The motion raises a number of arguments, but the most significant is the contention that Tierney’s work, as graffiti, is ineligible for copyright protection in the first instance. The view here is that defendants are mistaken about the eligibility question. And even if defendants can convince the court that they are right about the legal question of the availability of copyright for street art or graffiti, Tierney’s factual rebuttal on the question of whether had permission to create the art that was used in Moschino’s clothing designs makes it hard to imagine that they could convince the court that there are no material facts in dispute—the applicable standard for a motion for summary judgment. It will be very interesting too to see how the court grapples with questions about whether characters and symbols can be copyright management information (CMI) under the Digital Millennium Copyright Act (DMCA, 17 U.S.C. § 1202).
Last year street artist Joseph Tierney, better known as “Rime,” sued designer Moschino S.p.A. and its creative director, Jeremy Scott, for a variety of copyright and trademark claims based on the alleged use of Rime’s works in certain fashion lines. The presiding court has denied Moschino’s efforts to have the claim dismissed in a decision that provides an important, if implicit, endorsement of the rights of street artists under the Copyright Act, and of a novel theory under the DMCA. While some reports stated that the case was now going to trial, it is not there quite yet. It will now presumably head into discovery for the exchange of facts and information to see if there is in fact a need for a trial later.
The fusion of street art, high fashion, and the law is hardly new, but the Italian designer Moschino’s latest foray into this genre has landed the company in court. Joseph Tierney, a well known graffiti artist who works under the pseudonym “Rime”, filed a complaint against Moschino and its creative director, Jeremy Scott, alleging copyright infringement, trademark violations under the Lanham Act, and unfair competition, and appropriation of name and likeness under California law. Moschino’s allegedly unauthorized use of his work has harmed the artist in numerous ways, Tierney alleges, not the least by opening him up to accusations of selling out. In the words of Tierney’s complaint: “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.” This theory of harm was something we talked about at the "Copyrights on the Street" panel at the Copyright Society of the USA meeting in Newport this year, and it is now being put to the test.
Topics: Joseph Tierney, copyright management information, Vandal Eyes, Digital Millennium Copyright Act, Rime, The Wall Street Journal, Graffiti Art, 17 U.S.C. § 1202, Gigi Hadid, Trademark, Hollywood Reporter, Jeremy Scott, Copyright, Moschino, Lanham Act, The New York Times, intellectual property