Art Law Report

Graffiti on the Runway: Street Artist Rime Pursues Lawsuit Against Moschino for Damaging His Street Cred

Posted by Nicholas O'Donnell on November 4, 2015 at 9:02 AM

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.

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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

"Free Brady" T Shirt Battle and Copyright: Who was First?

Posted by Nicholas O'Donnell on August 14, 2015 at 9:06 AM

Somewhat tongue in cheek, we looked on Wednesday at the potential copyright implications from a back and forth between Governor Charlie Baker and Barstool Sports, which sells “Free Brady” T shirts (playing on Shepard Fairey’ famous Hope image) challenging the New England Patriots’ quarterback’s suspension by the National Football League (“DeflateGate” or “Ballghazi,” depending on who you ask). Gov. Baker recently wore a competing vendor’s “Free Brady” T shirt when doing the Ice Bucket Challenge. Given the sales potential arising out of one of the biggest stories in the country right now (insert decline-of-society comment here), however, the financial stakes are no laughing matter. The response to Wednesday's post has been overwhelming; we had more visitors in a three-hour window than we typically get in a month.

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Topics: National Football League, Copyright Act, David Portnoy, Free Brady, Barstool Sports, DeflateGate, Trademark, I Love Boston Sports, Ice Bucket Challenge, Shepard Fairey, Copyright, Senator Obama, NFL, Hope, Tom Brady, Ballghazi, Charlie Baker

Free Brady!—Did Governor Baker’s T-Shirt Have a Copyright Problem?

Posted by Nicholas O'Donnell on August 12, 2015 at 6:17 AM

Tom Brady will be in New York today at a hearing in the litigation over his 4-game suspension by Roger Goodell for allegedly being “generally aware” of the deflation of footballs in the AFC Championship thrashing of the Indianapolis Colts last winter. For good legal analysis of the absolute fiasco that is the NFL’s attempt at a middle-school science project (instigated by the condition of a football introduced from the opposing team—but congratulations on another AFC Finalist banner) and the resulting adjudicatory process, I suggest John Dowd’s blog (“The NFL's investigation of and rules against Tom Brady are a travesty, and they've resulted in uncalled-for penalties. And it's all based on a report that lacks basic integrity, fairness and credibility.”). Dowd is an experienced federal prosecutor and led the investigation, among others, into Pete Rose and gambling for Major League Baseball. Most notably, he was sufficiently offended by the whole exercise to take the issue up with no relationship to the parties. Mike Florio at ProFootballTalk and Steph Stradley have also covered the story well.

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Topics: Left Shark, ProFootballTalk, ALS. Metro, Copyright Act, Pete Frates, David Portnoy, Indianapolis Colts, AFC Championship, Free Brady, Mike Florio, Barstool Sports, Jacqueline Kennedy, Trademark, John Dowd, Ice Bucket Challenge, Shepard Fairey, Major League Baseball, Copyright, Roger Goodell, Senator Obama, Hope, AFC Finalist, Andy Warhol, Tom Brady, Charlie Baker, Massachusetts Governor, Fair Use

UPDATE: Left Shark Not Free to Roam the Oceans of Intellectual Property Just Yet

Posted by Nicholas O'Donnell on April 30, 2015 at 11:15 AM

UPDATE: The battle over Left Shark is not over yet! Upon closer examination, last week’s trademark-related denial involved only one of six classes (Class 41 for “live musical and dance performances”) covered in Katy Perry’s application to register a front view of the Left Shark. The Patent and Trademark Office rejected the specimen she submitted to prove use of the image as a service mark. The specimen in question was a photograph taken from the Super Bowl performance. Despite this initial rejection all of Perry's applications are still very much in play.

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Topics: Left Shark, trade dress, USPTO, Halftime Show, Katy Perry, Trademark, Super Bowl, Copyright, Patent and Trademark Office, intellectual property

Left Shark Podcast with Massachusetts Lawyers Weekly

Posted by Nicholas O'Donnell on April 27, 2015 at 5:01 AM

I participated in a podcast on Friday about the denial of a portion of an application for trademark recognition to Katy Perry for the "Left Shark" phenomenon. You can listen to it here.

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Topics: Left Shark, Massachusetts Lawyers Weekly, Katy Perry, Podcast, Trademark, Copyright, intellectual property

Go Forth, Left Shark, and Prosper? USPTO Trims Katy Perry’s Request to Trademark Super Bowl Meme

Posted by Nicholas O'Donnell on April 24, 2015 at 5:15 AM

In the afterglow of the spectacle of this year’s confusing yet captivating Super Bowl halftime show (Go Pats!), we mused about the art law ramifications of the unexpected birth of the visual Left Shark phenomenon, the costumed dancer who was famous within seconds for a certain lack of enthusiasm. The initial discussion focused on whether the dancer’s costume design within the show itself allowed Perry to control its use as a matter of copyright. The recipient of one cease and desist letter disagreed, both humorously and persuasively, principally based on precedents about costume designs, and on the nature of the use itself. Left unresolved were any arguments about fair use, but those seemed clear to us as well: a T-shirt, Twitter post, internet meme, SportsCenter commercial, etc., that evokes some level of post-modern world-weariness in contrast to Perry’s boisterous beach-party theme should be transformative enough even for the strictest of copyright constructionists. It is not clear on the public record though how much of a fight there has been over that point.

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Topics: Left Shark, trade dress, USPTO, Halftime Show, Katy Perry, Super Bowl XLIX, Trademark, New England Patriots, Sullivan & Worcester LLP, Super Bowl, Copyright, Patent and Trademark Office, Trending Trademarks

Authentication Lawsuit Against Keith Haring Foundation is Dismissed

Posted by Nicholas O'Donnell on March 11, 2015 at 3:04 AM

The lawsuit arising out of the Keith Haring Foundation’s refusal to authenticate a painting a Haring work, and the Foundation’s related efforts to prevent the exhibition of works it did not consider to be authentic, has been dismissed. The case is the latest in a series of civil cases related to the authentication of art—contemporary art in particular. While this case is resolved pending any appeal, the high-stakes nature of contemporary art assures that it will not be the last.

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Topics: authentication, Keith Haring, Trademark, Sherman Act, Keith Haring Foundation, Gagosian Gallery, Lanham Act, Sotheby's, MIami

Graffiti Litigation Update: Settlements and Procedural Wrangling

Posted by Nicholas O'Donnell on December 3, 2014 at 5:50 AM

Back in October, we surveyed some developments in lawsuits over public art and protection available under copyright law in graffiti art. There has been some movement, and other developments, in these cases.

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Topics: trademarks, Ahol Sniffs Glue, Zero Theorem, Digital Milennium Copyright Act, David Anasagasti, Zappos.com Inc., Monty Python, Sara Bareilles, 15 U.S.C. § 1125(a), London, Terry Giliam, the Lanham Act, DMCA, Jason 'Revok' Williams, 17 U.S.C. §1202 et seq., Public Art, Graffiti Art, Romania, Vogue, Nordstrom Inc., Chicago, Trademark, Amazon.com Inc., unfair competition, Robert Cavalli, Victor 'Reyes' Chapa, Jeffrey 'Steel' Rubin, Copyright, Buenos Aires, Litigation, Ocean Grown, Wal-Mart, New York Magazine, Graffiti, California Business and Professions Code § 17200, Staff USA Inc.

“Dumb Starbucks” Epilogue: Comedy Central Airs “Nathan For You” Episode Behind it All, Explores Parody, Commerce, and Visual Art

Posted by Nicholas O'Donnell on July 30, 2014 at 9:30 AM

Readers will recall the strange case of “Dumb Starbucks” earlier this year, which initially seemed to pose the question of whether a coffee shop that transparently used the marks and copyrights of Starbucks could claim fair use as an art gallery. It turned out that the entire performance was just that, a lead up to a Comedy Central series that has since debuted. We are not, of course, television critics, but in addition to being hillarious (and undoubtedly tongue in cheek), the full episode is an interesting platform for questions about the players and entities that can claim fair use to copyrights or trademarks over visual and creative works. In the end, the parody/fair use question could never really be answered, but the coverage the numerous news clips that the show included is a reminder of the difficulty of applying art critical concepts to legal analysis.

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Topics: Comedy Central, parody, Nathan for You, Weird Al Yankovic, @dumbstarbucks, Trademark, Nathan Fielder, Copyright, Starbucks, Twitter, Fair Use

"Dumb Starbucks" Indeed a Prank, Health Department is Not Amused

Posted by Nicholas O'Donnell on February 11, 2014 at 3:55 AM

As we suspected, the "Dumb Starbucks" store in Los Angeles claiming a right to copy Starbucks's logo and store design by relying on fair use turned out to be a prank after all (bolstered, as I did not realize yesterday by the fact that despite what the store said about selling coffee, they were actually just giving it away). It turns out that Nathan Fielder of Comedy Central was behind the whole thing, for use on his show "Nathan for You." Less funny for him was that yesterday the Los Angeles Board of Health closed the store for distributing food products without the proper licence.

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Topics: Nathan for You, Trademark, art gallery, Nathan Fielder, Dumb Starbucks, Copyright, Starbucks, intellectual property, Fair Use

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