‘Malarky' Is Latest Graffiti Artist to Sue Fashion Designer

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By Anandashankar Mazumdar

Jan. 8 — A British graffiti artist's complaint against a New York-based fashion boutique seems to be part of a trend in which graffiti artists' works are becoming commercially valuable and the artists are increasingly asserting their rights, according to practitioners who spoke to Bloomberg BNA.

The boutique, which has become known for expensive women's workout tights, has infringed the artist's trademark and publicity rights, according to a complaint filed Jan. 4 in the California Superior Court for the County of Los Angeles (Allsop v. Ultracor, Cal. Super. Ct. (Los Angeles Cty.), No. SC125210, complaint filed 1/4/16).

The complaint by Mark Allsop of London, a graffiti artist who works under the names “Malarko Hernandez” and “Malarky,” asserts trademark and right of publicity claims. No copyright claims were asserted because Malarky has not registered the relevant works, a prerequisite for bringing federal copyright claims under the Copyright Act of 1976, attorney Eugene Rome of Rome & Associates A.P.C., who is representing Malarky, told Bloomberg BNA.

New York Boutique Promotes Graffiti Designs 

Bandier Holdings LLC is a holding company for Jennifer Bandier's high-end New York boutique.

Bandier markets several lines of apparel based on designs by established and up-and-coming artists.

Malarky, whose Facebook page claims he has been “banned from Spain for graffiti arrests,” had been in discussions with Bandier over a period of several months in 2015 to collaborate on a line of apparel, according to the complaint.

(Click image to enlarge.)

malarky

Rome told Bloomberg BNA that Bandier had come to Malarky with a proposal, and it seemed that they had already started creating mock-ups using images taken of existing works. He said that Bandier went ahead with the fashion line even though there was no final deal.

Malarky's complaint said that he was unsatisfied with the approaches taken by Bandier, and he did not come to any agreement with the company over use of his designs.

Nevertheless, in December, Bandier began marketing a line under the name “Malarko Hernandez x Ultracor.” The Bandier website currently lists several items in the Ultracor line credited to collaborations “by London-based artist Malarko,” including: “Stealth Nano Malarko Print Bomber Jacket,” “Tote Malarko Print Bag,” “Ordinate Silk Cheshire Print Bra,” and “Ultra Silk Zigzag Print Legging.”

More Graffiti Artists Asserting Rights 

Sergio Muñoz Sarmiento, an art lawyer based in New York, told Bloomberg BNA that in the last three years or so, these kinds of legal disputes have started arising.

He said he thinks the Internet is responsible for such actions, because “It becomes easier for them to be notified if someone is using their work.”

Leila A. Amineddoleh of Galluzzo & Amineddoleh LLP, New York, pointed out several prominent cases that have recently arisen in this area:

• In August 2014, a trio of graffiti artists sued designer Roberto Cavalli, alleging that Cavalli's “Just Cavalli” brand had copied designs from a San Francisco Mission District mural for its Graffiti collection. Williams v. Roberto Cavalli S.p.A., No. 14-06659 (C.D. Cal. complaint filed Aug. 25, 2014). The plaintiffs filed a stipulation to dismiss the claims on Jan. 6, suggesting that the parties might have come to a settlement.

• In August 2015, a graffiti artist known as “Rime” sued Italian fashion house Moschino and its creative director Jeremy Scott, alleging that his Detroit mural “Vandal Eyes” and his signature had been copied and used on a dress worn by pop star Katy Perry at the Metropolitan Museum of Art's Costume Institute Gala on May 4, and by supermodel Gigi Hadid in a February fashion show in Milan. Tierney v. Moschino S.p.A., No. 115-05900 (C.D. Cal. complaint filed Aug. 5, 2015)

• In July 2014, David Anasagasti, a graffiti artist who goes by the name “Ahol Sniffs Glue,” sued American Eagle Outfitters, alleging that they used his works in a 2014 advertising campaign. The claims were settled that December. Anasagasti v. American Eagle Outfitters Inc., No. 14-05618 (S.D.N.Y. complaint filed July 23, 2014).

 

Other Cases Failed to Credit Artist 

Philippa “Pippa” Loengard, a law professor at Columbia University, New York, said that the Malarky complaint seemed different from the other cases because Bandier—unlike the manufacturers in the other cases—was not just taking designs but crediting them to Malarky.

“These people are perfectly happily advertising their affiliation and using that affiliation to promote the clothing,” Loengard told Bloomberg BNA. “Ordinarily if a clothing manufacturer is ripping off an artist, they don't make it the center of their ad campaign.”

Sarmiento noted the apparent incongruity between the outlaw attitudes of many graffiti artists—such as Malarky's purported ban from Spain—and the use of the legal system to protect their rights.

“This is the irony: they do it to be transgressive, but at the same time, they want the law to protect them,” he said.

Differences Between Graffiti Art and Traditional Art 

One issue that might affect graffiti artists, as opposed to other creators, in these cases is the question of whether the underlying works were created legally in the first place.

Some street artists obtain the permission of property owners to tag sites, but many graffiti works are actually acts of vandalism under the law.

“If you don't have permission, what rights does the artist have?” Sarmiento asked. “Questions like these haven't been answered by the courts.”

In terms of copyright jurisprudence, Sarmiento pointed out that it might be difficult in many cases to identify the author or authors of a work of street art and to say whether a work has been fixed—a prerequisite for copyright protection.

“Many times graffiti artists work with each other in tandem and they often overlap,” he said. “Sometimes it's hard to tell—if multiple graffiti artists have tagged a place over a week, a month or a year—who owns it.”

A rise in assertion of rights in street art is also likely based on the increased commercial value of such art.

“I think it's the sexiness of art, the pop-culturalization of art, and also the art market,” Sarmiento said. “There used to be a division between fine art and graffiti artists, and collectors only bought fine art. But that distinction has been erased. Graffiti artists are now seeing that collectors are accepting outsider art or street art.”

Amineddoleh expressed similar views.

“People are so interested in graffiti art and the law now, just because so many people are interested in graffiti art,” she said. “Urban art and street art have really caught the attention of the art world.”

Street Artists Particularly Vulnerable?

Both Amineddoleh and Erin Thompson, a professor of art crime at the City University of New York, said that it seemed that the fashion houses were failing to recognize the legitimate interests of graffiti artists, as opposed to other kinds of creators.

“It seems almost like a stupidity trend among these fashion companies in not treating these graffiti artists as if they have rights in these images. It's incredible short-sightedness,” Thompson told Bloomberg BNA.

“Unfortunately, what happens here is that some of these fashion labels mistakenly believe that graffiti artists don't have access to the law, and they take advantage of that,” Amineddoleh said. She suggested that perhaps the manufacturers assume that street artists don't have the means to enforce their rights.

Thompson noted that the cases so far have not involved unauthorized graffiti.

“If you sued to protect a right in an image you made by trespassing, that might result in arrest,” she noted. But “graffiti artists have rights in images, even if they placed those images illegally.”

Should such a case arise, that would prompt another series of legal questions.

Amineddoleh said that the question of “whether the graffiti was legal or not” is an aspect that “muddies this area, and perhaps that's why we're seeing more and more street artists having their designs taken.”

Furthermore, while graffiti artists certainly can assert intellectual property rights under copyright, trademark and right of publicity law, Amineddoleh said that it is uncertain whether they could exercise moral rights, which under U.S. law are protected by the Visual Artists Rights Act of 1990, 17 U.S.C. §106A.

VARA includes the right to protect a work of visual art from destruction, but it is unclear exactly how this might apply to street art, she said.

For example, in a notorious 2013 case, a group of graffiti artists who had covered a New York building site with art with the permission of the owner were not able to stop the owner from destroying the works when he decided to redevelop the property. Cohen v. G&M Realty LP, No. 13-05612 (S.D.N.Y. 2013).

Thompson noted that Malarky and other graffiti artists in cases like these seemed much more interested in protecting their “street cred” than in claiming the profits made from use of their designs.

“The strategy of the suit seems much more about injunctive relief and stopping the exploitation of the images rather than profiting from the wrongful use, which fits in with what I've been seeing in similar cases,” Thompson said. “It seems that graffiti artists are angry about misuse of their works, and are suing to stop loss of street cred.”

Bandier did not respond to a query from Bloomberg BNA.

Allsop was represented by Rome & Associates A.P.C., Los Angeles.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at amazumdar@bna.com

To contact the editor responsible for this story: Mike Wilczek in Washington at mwilczek@bna.com

Text is available at: http://src.bna.com/bVO.