Case Document 49 Filed 01/13/16 Page 1 of 12 Page ID #:434 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Moschino er a] Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE Paul M. 1112 Deputy Clerk Court Reporter Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Proceedings: IN CHAMBERS ORDER DENYING MOTIONS TO DISMISS DENYING MOTIONS TO STRIKE [13][19] Plaintiff brings this copyright and trademark action against Defendants for using his graf?ti art without his permission in Defendants? fashion line. Although Defendants Moschino and Jeremy Scott have ?led separate motions to dismiss and special motions to strike, the substantive arguments in the motions overlap signi?cantly. Accordingly, except where stated, the orut refers to Defendants? motions collectively. The Court held a hearing on the motions on January 11, 2016. In light of argrunents made at the hearing and for the reasons stated below, the Court DENIES Defendants? motions to dismiss and DENIES Defendants? special motions to strike. 1. Background Plaintiff Joseph Tierney (?Tierney?) is a world-renowned graf?ti artist, producing works under the pseudonym since 1991. (C ompl. 11 10). Tierney?s work has been featru?ed in muserun exhibitions, including in the Muserun of Contemporary Art in Los Angeles as part of the 2011 show ?Art in the Streets,? as well as in art galleries in Los Angeles, New York, and Paris. In 2008, Tierney was one of foru? artists invited by Disney to create an of?cially sanctioned reinterpretation of Mickey Mouse. Tierney has also been invited by Adidas and Converse to create limited edition footwear bearing Tierney?s artwork. Defendant Moschino (?Moschino?) is a high-end apparel brand based in Italy. 11 11). Moschino sells apparel around the world including in New York, Beverly Hills, and London. Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 12 Case Document 49 Filed 01/13/16 Page 2 of 12 Page ID #:435 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Moschino et a] Defendant Jeremy Scott (?Scott?) is an independent fashion designer. (Id. 1] 12). In 2013, Moschino hired Scott as its creative director. (Id. 1] 17). In 2012, Tierney painted a mru?al entitled ?Vandal Eyes? on the side of a building in Detroit. (Id. 1] 15). In 2015, as part of Moschino?s Fall/Winter 2015 fashion season, Defendants released a collection featru'ing graphic designs that included clothing with portions of Tierney?s ?Vandal Eyes? mural, as well as with his graf?ti tag: (Id. 1] 17). Tierney alleges that Defendants also attached the brand name ?Moschino? on the clothing. (Id. 1] 19). Tierney alleges the collection was made available for sale extensively throughout the world, and garnered international attention dru?ing the February 2015 Moschino runway show in Milan when Moschino hired models to advertise and display the collection. (Id. 1] 20). Supermodel Gigi Hadid closed the show with Defendants? dress featuring Tierney?s ?Vandal Eyes.? In May 2015, Defendants again highlighted their clothing featuring Tierney?s ?Vandal Eyes? at the Metropolitan Museum of Art in New York City Gala (?Met Gala?). Celebrity Katy Perry and Defendant Scott appeared at the Met Gala wearing a dress and suit featuring Tierney?s ?Vandal Eyes.? Following the Met Gala, Tierney alleges that Defendants? collection bearing Tierney?s graf?ti garnered immense publicity through various news and pop culture channels the New York Times, CNN, Vogue, Vanity Fair, People, US Weekly), and was viewed extensively on social media. Tierney alleges that Defendants have enjoyed increased revenue from the sale and advertisement of the collection. (Id. 1] 22). Tierney alleges that Defendants? actions have damaged his reputation and credibility in the art world based upon the perceived association with and endorsement of the Moschino and Jeremy Scott brands. (Id. 1] 23). Tierney explains that his perceived association with Defendants? clothing has harmed his ?street cred? and that he is now subject to charges of ?selling out.? Tierney brings the following causes of action: (1) copyright infringement; (2) falsi?cation, removal, and alteration of copyright management information in violation of 17 U.S.C. 1202; (3) unfair competition under Section 43(a) of the Lanham Act (15 U.S.C . 1125(a)); (4) rmfair competition under California Business and Professions Code 17200 et seq; (5) unfair competition under California common law; (6) appropriation of name and likeness in Violation of California Civil Code 3344; (7) and negligence. Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 2 of 12 Case Document 49 Filed 01/13/16 Page 3 of 12 Page ID #:436 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Moschino et al Presently before the mm are Defendants? motions to dismiss causes two through seven, and special motions to strike causes four through seven. 11. Motions to dismiss (Dkts. 14, 18) A. Legal standard A motion to dismiss tmder Rule 12(b)(6) challenges the legal suf?ciency of the claims stated in the complaint. See Fed. R. iv. Proc. To sruvive a motion to dismiss, the plaintiff complaint ?must contain suf?cient factual matter, accepted as true, to ?state a claim to relief that is plausible on its face.?? Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twomblv, 550 US. 544, 570 (2007)). claim has facial plausibility when the plaintiff pleads factual content that allows the com?t to draw the reasonable inference that the defendant is liable for the misconduct alleged.? Iqbal, 556 US. at 678. A complaint that offers mere ?labels and conclusions? or ?a formulaic recitation of the elements of a cause of action will not do.? Id; see also Moss v. US. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556 US. at 678). In reviewing a Rule 12(b)(6) motion, a comt ?must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party.? Retail Prop. Trust v. United Blza'. of Carpenters Joiners of Am, 768 F.3d 938, 945 (9th Cir. 2014). Thus, ?[w]hile legal conclusions can provide the complaint?s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a comt should their veracity and then determine whether they plausibly give rise to an entitlement to relief.? Iqbal, 556 US. at 679. B. Discussion 1. Copyright infringement Defendant Moschino does not seek to dismiss Tierney?s copyright in??ingement claim on the merits. However, Defendant Scott argues, as to all of Tierney?s claims including the copyright infringement claim, that Tierney has not adequately alleged Scott?s involvement in Moschino?s alleged actions. Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 3 of 12 Case Document 49 Filed 01/13/16 Page 4 of 12 Page ID #:437 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Moschino er a] Tierney alleges that Scott is responsible for Moschino?s collection because of Scott?s position in Moschino as its creative director, ?as well as media photographs, information posted on Moschino?s website and social media accounts; and Jeremy Scott?s social media accounts.? (C ompl. 11 12). The Court ?nds that Scott?s position as Moschino?s creative director is suf?cient to create a reasonable inference that he was involved in Moschino?s collection. As Tierney argues, it is a reasonable inference that ?the high-pro?le head designer and creative Visionary of the Moschino brand would participate in the design of its most high-pro?le garment of the season.? (Pl. Opp. to Motion to Disnriss, at 5). Therefore, the orut DENIES Defendant Scott?s motion to dismiss this claim.1 2. Falsi?cation, removal, and alteration of Copyright Management Information Tierney brings two sub-causes of action under 17 U.S.C. 1202(a) and Section 1202(a) is a falsi?cation claim, which requires the plaintiff to allege that the defendant ?knowingly and with the intent to induce, enable, facilitate, or conceal infringement . . . provide[d] copyright management information that is false.? Section 1202(b) is a removal claim, which requires the plaintiff to allege that the defendant ?intentionally remove[d] or alter[ed] any copyright management information? with the intent to conceal the defendant?s infringing conduct. Section 1202(c) de?nes ?copyright management information,? with a list but not limited to: (1) the title or other information identifying the work, (2) the name of or other information identifying the author of the work, and (3) the name of, and other identifying information, about the copyright owner of the work. Section 1202(c) also provides an exception from its de?nition for ?any personally identifying information about a user of a work.? a. Section 1202(a) falsi?cation claim Tierney argues that Defendants violated Section 1202(a) by adding their brand ?Moschino? to the clothing featuring Tierney?s graf?ti, suggesting that Moschino is the author of the designs. 1 Although Defendants argued in their reply briefs that Tierney may not have standing to bring a copyright in??ingement claim, these argrunents have not been fully briefed or developed. The parties may raise the issue again in their motion for srumnary judgment. Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 4 of 12 Case Document 49 Filed 01/13/16 Page 5 of 12 Page ID #:438 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Mose/lino et a] First, Defendants argue that Tierney has failed to plead that Defendants acted knowingly under Section 1202. However, the orut ?nds that when Defendants? use of Tierney?s work is considered in context, a reasonable inference can be drawn that Defendants knowingly committed the alleged conduct. In particular, Tierney alleges that Defendants not only placed Tierney?s graffiti tag, on two pieces in the collection, but also heavily featured Tierney?s mural, ?Vandal Eyes,? in the highlight dress of the same collection. Second, Defendants argue that their name, ?Moschino,? falls into the exception of Section 1202(c), as ?personally identifying information about the user of a work.? However, Defendants do not support this argument with any case law directly on point. In the cases Defendants cite, while the courts formd that the defendants that added their copyright management information did not violate Section 1202(a), it was because the allegedly infringing works were considered completely different products, not because the defendants? brand was ?user information? and did not constitute MI. See, Faulkner Press, LLC v. Class Notes, LLC, 756 F. Supp. 2d 1352 (N .D. Fla. 2010). Moreover, Defendants? argument falls short on a logical basis. As Plaintiff agues, taking Defendants? theory to the extreme, virtually any person who took another?s work and placed their name or brand on it could be considered a ?user of a work? rather than an infringer, and escape liability. Therefore the Court DENIES Defendants? motions on this claim. b. Section 1202(b) removal claim Tierney also argues that Defendants violated Section 1202(b) by removing the CMI present in ?Vandal Eyes? in Defendants? clothing. In his complaint, Tierney alleged that ?[t]he Mru?al contained copyright management information . . . including Plaintiff?s signature, and other source identifying elements.? (Compl. 11 35). As Defendants note, Tierney?s signature, does not appear anywhere on the ?Vandal Eyes? mural. In Tierney?s opposition to the motion to dismiss, he clari?ed that the relevant CMI is the asterisk-like symbol at the bottom left of the mru?al. Tierney explained that the symbol refers to Tierney?s artist collective known as, ?The Seventh Letter.? Thus, according to Tierney, his copyrighted work, ?Vandal Eyes,? contained CMI in the form of the symbol, and Defendants? clothing included portions of ?Vandal Eyes? but omitted the symbol in violation of Section 1202(b). At the hearing held Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 5 of 12 Case Document 49 Filed 01/13/16 Page 6 of 12 Page ID #:439 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. et al on January 11, 2016, Tierney explained again that the symbol constitutes MI on Tierney?s ?Vandal Eyes? because it signals the ?crew? to which Tierney belongs. Defendants ?rst argue that Section 1202 violations can only occru? if a technological process was used in either placing or removing MI. Two courts, including one by a magistrate judge in this district, have held that Section 1202, as part of the Digital Millennium Copyright Act only creates violations when CMI is added or removed through a digital or technological process. See Textile Secrets Intern, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184 (C .D. Cal. 2007); IQ Group, Ltd. v. Wiesner Publishing, LLC, 409 F. Supp. 2d 587, 697 (D.N.J. 2006). However, these cases have since been rejected by subsequent corut decisions, including by the Third Circuit and this district. See, e. Murphy v. Millennium Radio Group LLC, 650 F.3d 295 (3rd Cir. 2011); Fox v. Hildebrand, 2009 WL 1977996 (C .D. Cal. 2009); Williams v. Cavalli, 2015 WL 1247065 (C .D. Cal. 2015). These subsequent cases have held that the plain language of Section 1202 refers to MI as ?including in digital form,? thus indicating that MI is not limited to copyright notices that are digitally added or removed. Defendants next argue that Section 1202(b) removal claims must involve literal removal ?'om the plaintiff? 3 original work Tierney?s mural). See Kelly v. Arriva Soft Corp, 77 F. Supp. 2d 1116, 1122 (C .D. al. 1999) (holding that the provision ?applies only to the removal of copyright management information on a plaintiff?s product or original work?) (emphasis added). However, this reads additional language into Section 1202(b) and misstates Kelly. Section 1202(b) imposes no such requirement that MI must be removed from an original work. Rather, the MI is de?ned in sections as information ?conveyed in connection with copies? of a work. In addition, in Kelly, the corut found that MI was not removed from a photograph on a website because the only CMI available appeared on the website, but not on the photographs themselves. Here, Tierney alleges the asterisk-like symbol that appears directly on ?Vandal Eyes? was the therefore, when the mru?al was reproduced on Defendants? clothing without the symbol, it was a violation of 1202(b). Finally, Defendants argue that Tierney?s clari?cation of the relevant MI on ?Vandal Eyes? raises issues with either his copyright standing or his Section 1202(b) removal claim. Defendants argue that the symbol for the Seventh Letter either creates doubt as to whether Tierney is the true copyright holder (as opposed to the Seventh Letter), or is not MI because it does not convey information about Tierney. Although the parties attempted to develop these arguments at the hearing, given that these issues arose just prior to Defendants? replies and have not been fully briefed, the Court ?nds that the argrunents are better suited for resolution in a subsequent motion for summary judgment. Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 6 of 12 Case Document 49 Filed 01/13/16 Page 7 of 12 Page ID #:440 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Mose/lino er a] Accordingly, the Court DENIES Defendants? motions on this claim. 3. Unfair competition under Section 43(a) of the Lanham Act; Unfair competition under Cal. Bus. Prof. Code 17200 et seq; Unfair competition under California common law The Ninth Circuit has consistently held that claims brought tmder California unfair competition law are ?substantially congruent? to claims brought lmder the Lanham Act because the ultimate test under both is whether the public is likely to be deceived or confused. Cleary v. News Corp, 30 F.3d 1255, 1262-63 (9th Cir. 1994). Therefore, the orut considers together Tierney?s claims for rmfair competition under Section 43 of the Lanham Act, unfair competition rmder Cal. Bus. Prof. Code 17200, and rmfair competition lmder California common law. To state a claim under Section 43(a) of the Lanham Act, a plaintiff must establish that: (1) it has a valid mark; (2) the defendant used the mark in and (3) the defendant?s use of the mark is likely to cause confusion. See [-800 Contacts, Inc. v. WhenUCom, Inc, 414 F.3d 400, 407 (2d Cir. 2005). Tierney argues that Defendants? use of his graf?ti tag, on certain clothing in the collection created the false impression that Tierney endorsed, sponsored, or designed the collection. Defendants argue that Tierney has not clearly alleged that he has used his mark, in commerce, or that Defendants used Tierney?s mark, in commerce, both of which are necessary. However, Tierney has alleged that his work has been featru?ed in various museums, that he has been conmrissioned by Converse and Adidas to create original artwork on shoes, and that he was invited by Disney to reinterpret Mickey Mouse. At the hearing, Tierney finther clari?ed that his licensed artwork to Adidas and Disney has included the tag, and that Disney actually advertised the work as a ?Disney/RIME Collaboration.? As to Defendants? use of in commerce, Tierney alleged that ?The Collection? generally was made available for sale extensively arormd the world. Thus, a reasonable inference could be drawn that Defendants also sold the particular clothing featuring Although Defendants raise affnmative defenses lmder Rogers v. Grima/di, 875 F.2d 994 (2d Cir. 1989), and nominative fair use, the orut ?nds that a determination of these fact-intensive inquiries would be better suited in a motion for srunmary judgment. At this stage, the Court cannot determine Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 7 of 12 Case Document 49 Filed 01/13/16 Page 8 of 12 Page ID #:441 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Mose/lino et a] whether Defendants? use of was explicitly misleading as to the source or content of the work given the context in which appeared?namely, alongside the highlight piece of the collection, which heavily featured ?Vandal Eyes??or whether Defendants? use was simply nominative. See, e. Antodesk, Inc. v. Dassanlt Svs. SolidWorks Corp, 2008 WL 6742224 (N .D. Cal. Dec. 18, 2008); KP Permanent Make-Up, Inc. v. Lasting Impression 1, Inc., 408 F.3d 596, 609 (9th Cir. 2005) (fair use analysis involves questions of fact). Therefore, the Court DENIES Defendants? motions on these claims. 4. Appropriation of name and likeness under Cal. Civ. Code 3344 Section 3344 prohibits the knowing use of another?s ?name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods . . Cal. iv. Code 3344. Tierney alleges that Defendants knowingly used his name by placing his false signature on clothing without his authorization. First, Defendants again argue that: (1) Tierney has failed to plead a ?knowing? use of his name, and (2) Tierney has failed to plead that any clothing with was sold within the United States. However, as stated above, the Court ?nds that when Defendants? use of Tierney?s mark is considered in context, Tierney has suf?ciently alleged that Defendants knowingly used his name. Similarly, the ourt has already stated that Tierney has suf?ciently alleged that clothing with ?RleE? was sold within the United States. Second, Defendants raise additional arguments in their defense: that their use was (1) transformative, (2) incidental, and (3) that Section 3344 does not protect imitations of one?s name or pseudonyms. As to Defendants? third argrunent, the Court agrees that some cases have held that imitations of likeness and imitations of voices do not Violate Section 3344. See, e. Midler v. Ford Motor Co. 849 F.2d 460 (9th Cir. 1988). Moreover, here, Tierney admits that while Defendants attempted to copy his signature on their clothing, it is a fake signature. However, the orut ?nds that Defendants? argument is inapposite considering the scope of Tierney?s allegations. If Tierney had alleged that Defendants misappropriated his signatru?e, perhaps Defendants could prevail in their argument that imitations are not subject to Section 3344 liability. However, here, Tierney has alleged misappropriation of his name, which was used in a literal sense. Therefore, because Tierney alleges that Defendants used Tierney?s actual name, Defendants? imitation defense is rmavailing. Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 8 of 12 Case Document 49 Filed 01/13/16 Page 9 of 12 Page ID #:442 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Mose/lino er a] Defendants also argue that pseudonyms are not protected under Section 3344, but have not adequately supported this contention. The orut recognizes that there is little case law on the subject. However, in at least one case, the Ninth Circuit recognized that ?Cher? could be protected rmder Section 3344. Cher v. Forum Intern, Ltd, 692 F.2d 634 (9th Cir. 1982). Although the Ninth Circuit ultimately rejected her?s right of publicity claim, it appeared to acknowledge that her?s name could be protected rmder Section 3344. As to Defendants? arguments under the transformative and incidental use defenses, the oru't that such fact-intensive inquiries would be more appropriately resolved in a motion for summary judgment. Therefore, the Court DENIES Defendants? motions on this claim. 5. Negligence Tierney alleges that Defendants owed him a duty of care and breached that duty by ?failing to prevent injru?ious falsehoods from reaching the public.? (C ompl. 74-77). Although the parties do not dispute that Defendants cannot be liable for negligence based solely on a copyright Violation, the parties dispute whether Tierney can grormd his negligence claim on his trademark and right of publicity claims. Defendants argue that Tiemey?s negligence claim cannot be saved by his trademark and right of publicity claims because they all relate to his allegedly copyrighted work ?Vandal Eyes.? However, ?Vandal Eyes? relates almost exclusively to Tierney?s copyright claims. Because Tierney?s trademark and right of publicity claims are grormded in his tag, his negligence claim is not preempted. Accordingly, the Court DENIES Defendants? motions on this claim. Special motions to strike (Dkts. 13, 19) A. Legal standard California law permits for pre?trial dismissal of strategic lawsuits against public participation (SLAPPs). Cal. Code iv. P. 425.16. The statute was enacted to prevent and deter lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 9 of 12 Case Document 49 Filed 01/13/16 Page 10 of 12 Page ID #:443 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. et al and petition for the redress of grievances. In determining whether to grant an motion, the Court must engage in a two part inquiry: ?fu?st, whether the suit arises from the defendant?s protected conduct and, second, whether the plaintiff has shown a probability of success on the merits.? Hilton v. Hallmark Cards, 599 F.3d 894, 901-02 (9th Cir. 2009). ?Since an motion is brought at an early stage of proceedings, the plaintist burden of establishing a probability of success is not high.? Browne v. McCain, 611 F. Supp. 2d 1062, 1068 (C .D. Cal. 2009). B. Discussion Defendants seek to strike all of Tierney?s state claims pursuant to California?s statute, Cal. Civ. Code 425.16. First, Defendants must make a threshold showing that the challenged causes of action arise from protected activity. If this showing is made, then the burden shifts to Tierney to demonstrate a probability of prevailing on the contested claims. Defendants contend that their fashion line is protected activity because the development and design of creative works is subject to First Amendment protection. Defendants have not cited to any case ?nding that fashion is protected activity under statutes. However, coruts have found that television shows, comic books, video games, as well as holiday cards, are protectable creative works rmder See, e. Hilton, 599 F.3d at 904 (finding that a Halhnark card evidences an intent to convey a particularized message, and in the srurounding circumstances the likelihood was great that the message would be understood by those who viewed it). Moreover, the Ninth Circuit has emphasized that ?coruts of California have interpreted this piece of the defendant?s threshold showing rather loosely.? Id. at 903-04. Here, Defendants contend that the fashion line was intended to convey a message. Defendant Scott explains that he uses fashion to express himself creatively and to speak to political and cultural matters. For example, the New York Post wrote in a review of Scott?s work that ?his subversive humor and ability to comment on culture through clothes comes through loud and clear.? (Scott Decl. 11 9). As to the specific works in the present case, Scott explains that he came up with the graf?ti concept to subvert the seriousness of traditional black-tie fashion while also commenting on the way in which society objecti?es women by literally imposing cultural symbols and meaning upon them. (Id. 1111 7-8). Scott explains that his intention was to create a metaphor of a sophisticated woman literally tagged with Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 10 of 12 Case Document 49 Filed 01/13/16 Page 11 of 12 Page ID #:444 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Moschino et al graf?ti, much like any light pole, brick wall or mail box on the street corner. (Id. 1I 8). The Court that Defendants? fashion line satis?es this low threshold showing.2 Next, Defendants must show that their actions were in connection with an issue of public interest. Whether a defendant?s activity is in connection with a public issue is interpreted broadly in light of the statute?s purpose to encourage participation in matters of public importance or consequence. Hilton, 599 F.3d at 906. Although California coruts have applied different tests, one commonly cited test comes from Rivero v. American Federation of State, Countv, Mnniczpal Employees, 105 Cal. App. 4th 913 (2003). There, the court articulated three categories of public issues: (1) statements concerning a person or entity in the public eye, (2) conduct that could directly affect a large nrunber of people beyond the direct participants, and (3) a topic of widespread, public interest. Id. at 923. Defendants contend that their fashion was displayed at the Met Gala and involved celebrity Katy Perry, who is constantly in the public eye. See Stewart v. Rolling Stone LL C, 181 Cal. App. 4th 664, 667 (2010) (fmding that a magazine featru?e making reference to ?indie rock musicians? cormts as exercise of free speech in connection with a matter of public concern as ?there is a public interest which attaches to people who, by their accomplishments, mode of living, professional standing or calling, create a legitimate and widespread attention to their activities?). However, Tierney?s state claims subject to the statute are all grormded in Defendants? use of in their collection, not on their appropriation of ?Vandal Eyes? in the dress worn by celebrity Katy Peny and supermodel Gigi Hadid. Therefore, although Katy Perry?s fashion choices may be of public interest, that conduct is not the basis for Tierney?s state claims. That being said, the orut ?nds that Defendants? fashion line quali?es as an issue of public interest given that Jeremy Scott and Moschino are household names in high fashion. In fact, Tierney concedes that Defendants? fashion line, including both the ?Vandal Eyes? dress as well as the products including at the Milan Fashion Week ?garnered international attention.? (C ompl. 1} 20). Therefore, the orut ?nds that Defendants have satis?ed the ?st prong. 2 Moreover, fashion has been acknowledged as a form of First Amendment activity in other contexts. See, e. Tinker v. Des Moines Independent Community School Dist, 393 US. 503, 505 (1969) wearing of an armband for the pmpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment?). Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 11 of 12 Case Document 49 Filed 01/13/16 Page 12 of 12 Page ID #:445 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. Date January 13, 2016 Title Joseph Tierney v. Mose/lino et a] The second prong requires a determination as to whether ?the complaint is both legally suf?cient and supported by a suf?cient prirna facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.? Id. at 902. Defendants? motion applies to Tierney?s claims Imder California rmfair competition law, Section 3344, and negligence. As the Court discussed above, Tierney has adequately pled these claims. Moreover, at this early stage of the case, the oru't ?nds that Tierney has shown a probability of success on the merits. Although Defendants may have only used on two articles of clothing in their collection, the pieces appeared alongside the highlight dress of the collection, which heavily featru?ed Tierney?s ?Vandal Eyes? mural. In this context, the orut cannot ?nd as a matter of law that Defendants? use of was not explicitly misleading or would not lead to a likelihood of confusion. Accordingly, the orut DENIES Defendants? special motions to strike. IV. Conclusion In accordance with the foregoing, the orut DENIES Defendants? motions to dismiss and DENIES Defendants? special motions to strike. However, the Court ?nds that many of the aforementioned issues, along with Defendants? af?rmative defenses, may be suitable for determination on an expedited basis. Therefore, the Court sets the following briefmg schedule: Defendants shall ?le motions for summary judgment by Monday, April 18, 2016. Plaintiff shall ?le his oppositions by Monday, May 2, 2016. Defendants shall ?le their replies by Monday, May 9, 2016. The hearing on the motions shall be on Monday, May 23, 2016, at 1:30 pm. Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 12 of 12