Case 2:15-cv-05900-SVW-PJW Document 61 Filed 05/09/16 Page 1 of 16 Page ID #:680

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Peter R. Afrasiabi (Bar No. 193336)
pafrasiabi@onellp.com
John Tehranian (Bar No. 211616)
jtehranian@onellp.com
ONE LLP
4000 MacArthur Blvd.
East Tower, Suite 500
Newport Beach, CA 92660
Telephone: (949) 502-2870
Facsimile: (949) 258-5081
Attorneys for Defendant,
JEREMY SCOTT

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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JOSEPH TIERNEY, professionally known
as “Rime,” an individual;

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Plaintiff,
v.
MOSCHINO S.P.A., an Italian corporation;
JEREMY SCOTT, an individual; and
DOES 1-10 inclusive.
Defendants.

Case No. 2:15-cv-05900-SVW (PJWx)
Hon. Stephen V. Wilson
JEREMY SCOTT’S REPLY IN
SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
Date:
May 23, 2016
Time:
1:30 p.m.
Courtroom: 6 – 2nd Floor

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JEREMY SCOTT’S REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

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I. 

INTRODUCTION ....................................................................................................... 1 

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II. 

PLAINTIFF’S FAILURE TO CONDUCT DISCOVERY (AND HIS
REFUSAL TO RESPOND TO DISCOVERY) IS HIS OWN
RESPONSIBILITY AS TIERNEY’S CLAIMS AGAINST MR. SCOTT
WERE NEVER SETTLED AND THERE WAS NEVER ANY BASIS
FOR TIERNEY’S COUNSEL TO THINK OTHERWISE. ....................................... 1 

III. 

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DEFENDANTS’ ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S COPYRIGHT CLAIM. ....................................................................... 2 

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A. 

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As an Illegal Act of Trespass and Vandalism, Plaintiff’s Does Not
Receive the Benefit of the Copyright Privilege. ................................................ 2 
1. 

Plaintiff Had Full Notice of the Copyright Invalidity
Argument. ............................................................................................... 2 

2. 

The Undisputed Facts Show that Tierney’s Graffiti was an Act
of Trespass and Vandalism. .................................................................... 3 

3. 

Illegal Works Are Not Entitled to Copyright Protection. ....................... 5 

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B. 

Plaintiff Has Failed to Create a Genuine Issue of Material Fact as to
Whether Jeremy Scott Lacked Sufficient Volitional Conduct to Face
Direct Liability for the Infringement at Issue in This Suit. ............................... 6 

C. 

Plaintiff’s Eleventh-Hour Attempt to Rely on a Theory of
Contributory Liability to Salvage His Infringement Claim Against
Scott Is Impermissible as It Was Never Pled in His Complaint. ....................... 8 

D. 

Plaintiff Altogether Fails to Address the Factual Inconsistencies That
Call His Standing into Doubt, Thereby Conceding the Issue. ........................... 8 

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IV. 

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S CMI CLAIMS. .................................................................................... 9 

V. 

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S TRADEMARK AND UNFAIR COMPETITION CLAIMS. .......... 10 
A. 

Defendants’ Activities Are Firmly Protected under the Rogers
Defense............................................................................................................. 10 

B. 

Defendants’ Activities Are Also Protected as Nominative Fair Use
and Plaintiff Has Failed to Demonstrate Any Basis to Suggest
Otherwise. ........................................................................................................ 10 

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VI. 

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S § 3344 CLAIM. ................................................................................. 10 
A. 

Plaintiff Has Failed to Create a Genuine Issue of Material Fact
Regarding the Knowledge Requirement for a Cognizable § 3344
Claim. ............................................................................................................... 10 

B. 

Plaintiff Has Failed to Create a Genuine Issue of Material Fact as to
Whether Defendants’ Use Was Transformative. ............................................. 12 

C. 

Plaintiff Has Completely Failed to Address Defendants’ Argument
That, at Worst, Their Alleged Activities Constitute Incidental Use................ 12 

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VII.  DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S NEGLIGENCE CLAIM. .................................................................. 12 

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VIII.  CONCLUSION.......................................................................................................... 12 

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TABLE OF AUTHORITIES

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Cases 
CreAgri, Inc. v. USANA Health Sc., Inc.,
474 F.3d 626 (2007) ............................................................................................................ 6
Isle Royal Min. Co. v. Hertin,
37 Mich. 332 (1877)............................................................................................................ 5
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574 (1986) .......................................................................................................... 11
Mucci v. Town of N. Providence ex rel. Vallee,
815 F. Supp. 2d 541 (D.R.I. 2011) ..................................................................................... 9
Mutual Fund Investors, Inc. v. Putnam Management Co., Inc.,
553 F.2d 620 (9th Cir. 1977) .............................................................................................. 8
Satcher v. Univ. of Ark at Pine Bluff Bd. of Trs.,
558 F.3d 731 (9th Cir. 2009) .................................................................................. 9, 10, 12
Silvers v. Sony Pictures Ent., Inc.,
402 F.3d 881 (9th Cir. 2005) .............................................................................................. 9
Von Saher v. Norton Simon Museum of Art at Pasadena,
592 F.3d 954 (9th Cir. 2010) .............................................................................................. 7
Statutes 
17 U.S.C. § 201(b) .................................................................................................................. 9
Cal. Civ. Code § 3344 ........................................................................................................... 10

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Detroit Ord. §38-4-4 ............................................................................................................... 4

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Mich. Comp. Laws § 750.38 ................................................................................................... 4

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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

INTRODUCTION
Plaintiff’s central argument in his Opposition—that no new evidence was uncovered

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since the motion to dismiss—precisely explains why his claims should be rejected as a

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matter of law. While at the motion to dismiss stage, Plaintiff could rely on attorney

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argument and his raw pleadings, he is now tasked with presenting significant probative

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evidence to actually support each element of his claims—something he has decidedly failed

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to do. In his Opposition, Plaintiff has responded to uncontroverted facts that negate

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specific claim elements with nothing more than citations to his Complaint, conclusory

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allegations, or tangential declarations that do not actually refute the uncontroverted facts.

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These are plainly insufficient to avoid summary judgment.

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II.

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PLAINTIFF’S FAILURE TO CONDUCT DISCOVERY (AND HIS REFUSAL
TO RESPOND TO DISCOVERY) IS HIS OWN RESPONSIBILITY AS
TIERNEY’S CLAIMS AGAINST MR. SCOTT WERE NEVER SETTLED
AND THERE WAS NEVER ANY BASIS FOR TIERNEY’S COUNSEL TO
THINK OTHERWISE.
It is absolute balderdash to claim, as Plaintiff does in his Opposition (hereinafter,

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“Opp.”), that “the parties ultimately agreed to all material terms of a settlement.” Opp. at 3.

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There was never any settlement agreement between Plaintiff Tierney and Defendant Scott

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and there was never any agreement as to the material terms therefor. Tehranian Decl. in

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Support of Reply (hereinafter, “Tehranian Decl.”), ¶2. Tierney’s counsel never bothered to

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directly contact counsel for Scott to see if the purported settlement terms to which they

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refer were amenable to Scott. Id., ¶3. Scott and his counsel never suggested or led Tierney

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or his counsel to believe that there was a settlement and, in fact, told Tierney and his

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counsel that there was no settlement. Id., ¶4. And one need not rely on Scott’s

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representations on this front. The words of Jeff Gluck, counsel for Tierney, make it clear

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there never was any settlement with Scott. On the very day that Tierney filed his

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Opposition brief claiming (publicly) that there had been a settlement, Mr. Gluck wrote “It

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is very clear Jeremy Scott does not want to settle this case. . . . Scott was never going to
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allow us [Moschino and Tierney] to reach an agreement.” Id., ¶6.

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The filings in this case also make it clear that, contrary to Plaintiff’s unfounded

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assertion, there was never any settlement agreement with Mr. Scott. Id., ¶5. The Notice of

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Settlement to which Tierney cites in his Opposition, filed on April 19, 2016, was only

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signed by counsel for Moschino and Tierney. Dkt. No. 57; Tehranian Decl. Id., ¶5. It did

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not include Mr. Scott. Id. And it never said that the suit was settled with respect to Mr.

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Scott. Id. It was Tierney’s choice to bring Scott into this case. Plaintiff cannot simply

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declare the case settled, without Scott’s agreement, because Plaintiff wishes it so. And

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Plaintiff’s failure to carry out discovery (or respond to discovery) is not excused by

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blaming Scott for declining to settle.

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III.

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DEFENDANTS’ ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S COPYRIGHT CLAIM.
A.

As an Illegal Act of Trespass and Vandalism, Plaintiff’s Does Not Receive
the Benefit of the Copyright Privilege.

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To be clear, Defendants do not contend graffiti is intrinsically illegal or undeserving

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of recognition as an art form. Graffiti and other works of art that constitute illegal trespass

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and vandalism are not, however, entitled to copyright protection. Plaintiff has fallen well

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short of rebutting the facts establishing that the work at issue here constituted trespass and

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vandalism. As a matter of respect for public policy and the law and consonance with

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principles already enshrined in the Copyright Act, Plaintiff should not be granted a

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copyright, which effectively allows him to enforce property rights against the rest of the

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world, when his work itself was the direct result of a property rights violation.

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1.

Plaintiff Had Full Notice of the Copyright Invalidity Argument.

Plaintiff incorrectly claims that that the Defendants’ April 18, 2016 brief was the

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first time he heard that he would not have standing to bring a claim for copyright

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infringement over illegally-created material. In fact, Defendants actually informed counsel

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for Plaintiff and the Court that this exact argument would be made, at the motion to dismiss

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hearing on January 11, 2016, when the Court expressly requested a preview of the

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arguments coming up next. Counsel also discussed said argument in subsequent
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conference calls. Any negligence of Plaintiff to not propound discovery on that matter is

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no fault of Defendants.

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2.

The Undisputed Facts Show that Tierney’s Graffiti was an Act of
Trespass and Vandalism.

Plaintiff’s Opposition spends a great deal of time extolling the allegedly civicminded nature of Plaintiff’s work and the invitation he purportedly received to create the
graffiti at issue in this suit. But these atmospherics only distract from the relevant issue at
hand: was Tierney’s graffiti the result of an act of trespass and vandalism? To answer that
question, it is irrelevant if Mr. Tierney was invited by a gallery to participate in the socalled Detroit Beautification Project. Opp. at 4. It is irrelevant if the property on which
Mr. Tierney placed graffiti allegedly did not have a “Do Not Trespass” sign or a fence. Id.
It is irrelevant if the press allegedly responded “very positively” to the Detroit
Beautification Project. Id. And it is similarly irrelevant even if (dubiously) Mr. Tierney
had been told that he had “permission to paint the mural” from someone who was not the
property owner and who was passing along third-hand information, at best, about the
supposed permission to do so. Id.
Notably, none of the four declarations provided by Plaintiff state that he had received
permission from the actual owner of the building upon which he illegally placed graffiti.
See Dkt. Nos. 58-1, 58-2, and 58-3. Indeed, although the Plaintiff’s supporting declarations
claim that, “to the best of [the declarant’s] knowledge,” permission had been sought from
each and every owner of “approximately 100 different locations,” the declarants do not
recall which specific individual asked for permission for the 4559 Wesson building, and
none claimed to have actually asked. See Dkt. Nos. 58-1, 58-2, and 58-3. These
declarations are hearsay at best, and none directly refute the fact that the actual owner of
the building, Angel Group, did not give permission. Indeed, other than the single news
article cited by Plaintiff and his declarants (which never actually state that Plaintiff
received permission from each and every building owner), other news coverage of the
Detroit Beautification Project indicates that the organizers only “secured permission for
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city-owned buildings” (emphasis added).1 Chuck Decl., ¶2, Ex. A. In addition, at least one

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piece of graffiti was removed the very next day because “[t]he group chose to paint a

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billboard . . . without first confirming ownership.” Id., ¶¶3, 6, Ex. E. Another member of

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the Seventh Letter collective, REVOK, openly admitted to “painting an illegal burner on

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the wall” during the Detroit Beautification Project, calling Detroit a city where “what’s

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legal, what’s illegal . . . none of it really matters there.” Id., ¶3, Ex. B.

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The undisputed facts show Tierney was on private property without permission and

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he defaced a building. Mattie Decl., ¶¶4-20. While Plaintiff argues that acts of vandalism

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must be “willful and malicious,” Opp. at 10, to be illegal, this is incorrect. The marring or

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defacing of a building without consent of an owner need only be “willful or malicious[]”

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under Michigan law to constitute vandalism. See Mich. Comp. Laws § 750.383 (emphasis

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added). And, regardless, under Detroit city ordinances, it is unlawful to “destroy, injure or

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in any manner deface any real . . . property.” Detroit Ord. §38-4-4.2
Furthermore, under Michigan law, an act of trespass does not require any knowing

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action or bad faith. As the Michigan Supreme Court has held, at common law, “when one

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thus goes upon the land of another on an assumption of ownership, though in perfect good

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faith and under honest mistake as to his rights, he may be held responsible as a trespasser.

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His good faith does not excuse him from the payment of damages, the law requiring him at

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his peril to ascertain what his rights are, and not to invade the possession, actual or

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constructive, of another . . . [Trespasses] are not excused by good faith.” Isle Royal Min.

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The organizers did not even properly secure permission for city-owned buildings; the City
Council objected to not even being informed of the project before public property was
graffitied, and only retroactively approved after a contentious council meeting. Chuck
Decl.,
¶ 6, Ex. E.
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It is also worth noting that Plaintiff incorrectly claims that the building “wasn’t even
property to vandalize,” and it was merely a wall of an “uninhabitable structure,” in an
“abandoned field.” The building in question—the former Detroit Insulated Wire Company
warehouse—is a historic landmark and is uninhabitable in the sense that was intended for
commercial uses. Mr. Tierney graffitied the word “Vandal” in plain view and directly
across the street from the distinctive, century-old St. Francis D’Assisi Catholic Church, a
fact that alone should make clear that graffiti would not be welcome at that location.
Mattie Decl. ¶ 8. Nevertheless, as Tierney’s own video depicting his conduct indicates, it
is undeniable that there is a building on the property, that building was actually owned by
the Angel Group (and decidedly not abandoned), and Mr. Tierney did indeed vandalize the
building. Chuck Decl. ¶3, Ex. C.
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Co. v. Hertin, 37 Mich. 332, 335-36 (1877). The undisputed facts show that Mr. Tierney

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trespassed and vandalized in creating “Vandal Eyes”—an art work whose very name

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admits the very act—VANDALIZE—that gave rise to its creation. The only question that

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remains is whether copyright protection extends to works that are literally the product of

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trespass and vandalism. It is utterly disingenuous for Plaintiff to now portray himself as a

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law-abiding citizen that is outraged at the very thought that he might be called a vandal for

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spray-painting a work he himself called “Vandal Eyes.”

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Illegal Works Are Not Entitled to Copyright Protection.

Contrary to Plaintiff’s implications, Defendants are not arguing that Plaintiff should

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lose his copyright because he is a bad person or has engaged in immoral conduct during his

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life. Clearly, these distortions of Defendants’ arguments are simply a diversion and, in any

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event, irrelevant to the issuance of a copyright. And it is not a necessary consequence of

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Defendants’ argument that the copyrights to Burroughs’s Naked Lunch would be invalid if

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he wrote it while under the influence of an illegal substance or Kerouac’s On the Road

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invalid if written on a pilfered typewriter. In these inapposite examples, the illegal action

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(using unlawful substances or stealing a typewriter) is not inextricably related to, or a but

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for cause of, the creation of the work over which protection is sought. In other words,

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neither Naked Lunch nor On the Road is an illegal work in and of itself. But Plaintiff’s

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“Vandal Eyes” is; it is literally tangible residue of an act of trespass and vandalism.

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Thus, Defendants’ argument is much more pointed and limited than Plaintiff allows.

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Specifically, Defendant asserts that Plaintiff should not be vested with a property right

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which he can enforce against the world (i.e., a copyright) when the very act which

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purportedly gave rise to the vesting of that property right was an illegal act (trespass and

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vandalism) that involved Plaintiff brazenly violating someone else’s property rights. In

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said context, Defendants’ analogy to the Black Dahlia murderer claiming a copyright in

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his unique slashing marks is entirely apt. Plaintiff is no murder, of course; but he is no

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more entitled to a copyright for his illegal conduct than the Black Dahlia murderer is.

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Plaintiff’s original murals where he obtained authorization from a property owner may well
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be copyrightable. Those, however, that are the result of trespass and vandalism are not.
Plaintiff also conveniently glosses over the fact that this basic principle—that illegal

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works do not enjoy copyright protection—is already enshrined in the Copyright Act.

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Specifically, Plaintiff wholly ignores the extensive precedent (cited in Defendants’ Motion,

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at 6) that makes it clear that illegal works, such as unauthorized derivative works which are

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the result of a trespass on someone else’s property rights (i.e., a copyright infringement) are

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not entitled to copyright protection.

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In addition, it is not just copyright law that declines to grant intellectual property

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rights to illegal actions. Copyright’s neighboring intellectual property field—trademark

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law—does not extend protection to illegal works either. Among other things, the Lanham

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Act requires lawful use of a mark in commerce as a predicate for trademark protection.

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CreAgri, Inc. v. USANA Health Sc., Inc., 474 F.3d 626 (2007). As the Ninth Circuit has

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reasoned, “it would be illogical to have the government extend intellectual property

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protection “to a seller based upon actions the seller took in violation of that government’s

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own laws.” Id. at 630. It would similarly make no sense to grant copyright protection to

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graffiti that is literally the product of a violation of laws against trespass and vandalism. It

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would be ironic indeed to give property rights to an individual (via the copyright

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monopoly) whose very creation of said property rights involved an infringement of the

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property rights of others.

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B.

Plaintiff Has Failed to Create a Genuine Issue of Material Fact as to
Whether Jeremy Scott Lacked Sufficient Volitional Conduct to Face
Direct Liability for the Infringement at Issue in This Suit.

Plaintiff’s Opposition Brief entirely fails address the clear evidence introduced by

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Scott regarding his absolute lack of any knowledge of Tierney, his work “Vandal Eyes” or

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the purported infringement at issue here. Indeed, the undisputed evidence continues to

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show that Scott had nothing whatsoever to do with the creation of the allegedly infringing

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graphics that form the subject matter of this suit. These facts absolve Scott of any liability

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in this suit and they also raise the specter that the claims brought against Scott had no basis

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in the first place. Indeed, they suggest that the inclusion of Scott in this suit was simply a
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ploy by Plaintiff to generate publicity and an ill-conceived to create leverage for the

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settlement of the claims he apparently so desperately craves.

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Wholly lacking any facts to support his copyright infringement claim against Scott,

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Plaintiff instead turns to unsubstantiated innuendo to suggest Scott’s culpability. Opp. at 5.

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These references (to alleged claims of prior infringement by Scott) are based on false facts,

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inadmissible (and hereby objected to) as well as utterly irrelevant to this suit. Moreover,

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the two links (to a purported article and video) are also inadmissible as proper foundation

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has not been provided introduction as evidence (and they are hereby objected to) and they

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cannot be admitted for the purported truth of their contents. Von Saher v. Norton Simon

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Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010) (“Courts may take judicial

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notice of publications introduced to indicate what was in the public realm at the time, not

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whether the contents of those articles were in fact true.’) (citation omitted).

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Even if said article and video are admitted to evidence, they say nothing whatsoever

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about Scott’s involvement in the infringing graphic designs at issue in this case. And,

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indeed, there is no basis whatsoever to characterize them, as Plaintiff does, as Scott stating

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his “total responsibility for all aspects of his collection.” Opp. at 4-5. Indeed, the word

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“responsibility” is not even present in the article or video.

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Instead, the uncontroverted evidence shows that Scott is a fashion designer, not a

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graphic artist and, as such, he did not design or select the actual print on the dress and suit

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at issue in this suit. Decl. of Jeremy Scott in Support of Defendants’ MSJ (hereinafter,

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“Scott Decl.”), ¶3. Although he had the idea of doing a graffiti-based collection, he did not

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design or select the actual print on the dress and suit at issue in this case. Id. He designed

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the form and pattern of the dress, which, once made, then had graffiti created independently

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created and applied by a graphic artist. Id. He gave no further input or direction in the

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creation of the actual print on the dress and suit other to to come up with the concept of

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using graffiti prints in general on formal wear as a metaphor for tagging women like

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inanimate street objects. Id. All of the graphics and print at issue in this case were selected

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and created by a graphic artist at Moschino completely independently of Mr. Scott, as Scott
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is not and has never been a graphic artist. Id. at ¶5. Indeed, this is common practice: a

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graphic artist normally creates all the graphics which are placed on garments or bags after

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having been given a general idea (e.g., a “graffiti”-inspired line). Id.

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As such, Scott plainly lacks the volitional conduct to be held personally liable for

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any claim of direct infringement stemming from the creation of the allegedly infringing

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products in the Moschino collection. And, while Plaintiff’s complete reliance on

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assumptions from bald allegations, Opp. at 8-9, might enable him to survive a motion to

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dismiss, they do not enable him to survive a motion for summary judgment, where an

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opposing party must provide “significant probative evidence” to support his allegations, not

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merely “threadbare conclusory statements.” Mutual Fund Investors, Inc. v. Putnam

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Management Co., Inc., 553 F.2d 620, 624, 625 (9th Cir. 1977).

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C.

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Plaintiff’s Eleventh-Hour Attempt to Rely on a Theory of Contributory
Liability to Salvage His Infringement Claim Against Scott Is
Impermissible as It Was Never Pled in His Complaint.

Plaintiff is quite correct that contributory theories of liability do exist in copyright

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law. However, his reliance on such a theory of contributory infringement is unavailing for

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one simple fact: contributory infringement was never pled, either against Scott or

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Moschino, in the Complaint in this case. To wit, Plaintiff only pled direct infringement

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liability. See Complaint ¶¶1-33 (containing only a single cause of action on copyright

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infringement for direct liability, no mention of secondary liability theories such as

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contributory liability and no pleading of the knowledge/material contribution elements

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required for such claims). As such, it is too late in the day for the Plaintiff to raise this new

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theory of liability as a way of addressing the failure of their direct infringement claim.

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D.

Plaintiff Altogether Fails to Address the Factual Inconsistencies That Call
His Standing into Doubt, Thereby Conceding the Issue.

Finally, plaintiff has altogether ignored a critical issue of standing raised in

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Defendants’ brief—namely, that Plaintiff is, by his own admission and his arguments

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pertaining to CMI, not the owner to the copyright to the work at issue in this suit. See Opp.

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at 8. And it is an axiomatic rule of copyright law that a plaintiff who does not hold
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copyright ownership has no standing to bring an infringement claim. See Silvers v. Sony

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Pictures Ent., Inc., 402 F.3d 881, 885 (9th Cir. 2005). Based on Tierney’s own admissions,

3

he does not have standing to bring his infringement claim. And, further, by failing to

4

oppose this basis for summary judgment, Plaintiff has conceded the argument. See Satcher

5

v. Univ. of Ark at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (9th Cir. 2009).3

6

IV.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
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DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S CMI CLAIMS.
Plaintiff completely ignores Defendants’ clear and detailed argument regarding his

failure to show that the Seventh Letter symbol constitutes CMI, as defined by statute, to
state a cognizable § 1202 claim. Unintelligible and irrelevant ramblings about making a
“political statement” with the use of the Seventh Letter symbol, Opp. at 15, do not save
Plaintiff’s ill-conceived CMI claim.
Moreover, while alternatively pleading inconsistent claims is allowed at the motion
to dismiss stage, “at the summary judgment stage, these claims effectively merge, and the
plaintiff must choose which one he wishes to press.” Mucci v. Town of N. Providence ex
rel. Vallee, 815 F. Supp. 2d 541, 549 n. 11 (D.R.I. 2011) (granting summary judgment on
both inconsistent claims). Plaintiff cannot claim, at this stage in the case, both that The
Seventh Letter symbol is CMI—designating the copyright owner—and that he, and not The
Seventh Letter, is the owner and has standing to sue for infringement. These inconsistent
theories cause both his claims to fail. Plaintiff does not identify any CMI specific to him as
having been removed or altered, and his §1202 claim fails on this point alone.

22
23
24
25
26
27
28

3

If anything, Plaintiff’s Opposition has further undermined his standing to bring this suit.
In his opposition, he states that, contrary to his original assertion that he independently
created the graffiti, he was specifically hired by gallery owners Jesse Cory and Daniel
Armand to create the graffiti as a commissioned work-for-hire for the Detroit
Beautification Project, at a time, location, and manner chosen and directed by Jesse Cory
and Daniel Armand. Opp. at 4; Armand Decl.; Cory Decl. The Detroit Beautification
Project was commercially sponsored and paid for by Montana Cans paint company, and all
participating graffiti artists had to agree to not paint anything offensive, as well as having
the time, location, and manner chosen by the project organizers. Chuck Decl., ¶6 Ex. E.
Thus, without an express written agreement to the contrary, Cory, Armand and Montana
Cans are presumptively the work’s authors, posing another standing issue for Tierney. See
17 U.S.C. § 201(b) (noting that copyright for a specially commissioned work vests in the
commissioning party).
9
JEREMY SCOTT’S REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

 Case 2:15-cv-05900-SVW-PJW Document 61 Filed 05/09/16 Page 14 of 16 Page ID #:693

Finally, the undisputed facts show that Scott had no knowledge of or involvement in

1
2

the alleged failure to place the Seventh Letter symbol on the dress and suit at issue in this

3

case as, inter alia, he had never seen “Vandal Eyes” or the Seventh Letter symbol. Scott

4

Decl., ¶8. In fact, he had never seen Tierney’s “Vandal Eyes” work until Tierney’s

5

allegations of infringement were raised against him. Scott Decl., ¶ 9. He had no

6

knowledge of or involvement in the alleged placing of the word “MOSCHINO” on the

7

dress or suit graphics or on any graphic in the allegedly infringing collection. Scott Decl., ¶

8

10.

9

More fundamentally, Plaintiff altogether ignores his failure to show, as required, that

10

Defendants acted with the required intentionality and knowledge for a CMI claim. Plaintiff

11

has therefore conceded this issue. See Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558

12

F.3d 731, 735 (9th Cir. 2009) (holding that “failure to oppose a basis for summary

13

judgment constitutes waiver of that argument.”).

14

V.

15

A.

16
17
18

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S TRADEMARK AND UNFAIR COMPETITION CLAIMS.
Defendants’ Activities Are Firmly Protected under the Rogers Defense.

Scott hereby adopts the arguments in Defendant Moschino’s Reply Brief on the issue
of the Rogers defense and incorporates those herein by reference.
B.

19
20

Defendants’ Activities Are Also Protected as Nominative Fair Use and
Plaintiff Has Failed to Demonstrate Any Basis to Suggest Otherwise.

Scott hereby adopts the arguments in Defendant Moschino’s Reply Brief on the issue

21

of nominative fair use and incorporates those herein by reference.

22

VI.

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DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S § 3344 CLAIM.
A.

Plaintiff Has Failed to Create a Genuine Issue of Material Fact Regarding
the Knowledge Requirement for a Cognizable § 3344 Claim.

Knowing “use” is an essential element of a Cal. Civ. Code § 3344 claim, and thus,

26

Defendants’ only responsibility is to point to a lack of evidence on the Plaintiff’s part

27

before the burden shifts to the Plaintiff to produce significant probative evidence showing

28

that Scott had actual knowledge of Mr. Tierney’s identity and his association with the word
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JEREMY SCOTT’S REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

 Case 2:15-cv-05900-SVW-PJW Document 61 Filed 05/09/16 Page 15 of 16 Page ID #:694

1

RIME. As Plaintiff himself has admitted, his theory that Defendant purposely hid Mr.

2

Tierney’s identity as an author and at the same time were trying to trade off Plaintiff’s

3

name and reputation “(as alleged) does not make sense” and is “irrational.” Dkt. No. 32, at

4

14. Further, it is implausible and makes no economic sense that Moschino knew of Mr.

5

Tierney’s association with the word RIME, and knowingly used the word RIME to

6

appropriate his name and reputation, and decided to do so by putting the word RIME, not

7

on the same dress on which the Vandal Eyes Graffiti allegedly appears, but on a barely

8

visible shoulder of an altogether different dress, and on the side of a suitcase, obscured by a

9

plethora of other graffiti. Whereas at the motion to dismiss stage, an irrational theory may

10

not be a sufficient pleading challenge, at the summary judgment stage, “if the factual

11

context renders respondents' claim implausible-if the claim is one that simply makes no

12

economic sense-respondents must come forward with more persuasive evidence to support

13

their claim than would otherwise be necessary.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

14

Radio Corp., 475 U.S. 574, 585-87 (1986). Plaintiff does not have any evidence to show,

15

let alone “more persuasive evidence” to show any knowing use on Defendants’ part.

16

To the knowledge requirement, Plaintiff simply says he has pled sufficient

17

allegations to make out such a case. But that is the standard on motions to dismiss, not

18

summary judgment, where an opposing party must show a legitimate dispute of material

19

fact on the issue by marshalling evidence supporting his claim that Scott had requisite

20

knowledge. Tierney has altogether failed to do so. Scott has provided uncontroverted

21

evidence that he had nothing to do with the actual creation of the graphic designs at issue

22

and, beyond that, that he did not even know who Rime is until this lawsuit. And he did not

23

design or select the RIME graphics on the two items reproduced in the Plaintiff’s

24

Complaint ¶2. Id. at ¶4. His role was to design the actual form, shape and style of the two

25

items. The various letters and graphics on the items were created and applied independently

26

by a graphic artist. Id. at ¶4. As such, Scott did not possess any knowledge regarding the

27

alleged unauthorized use of Mr. Tierney’s pseudonym/false signature on two alleged

28

Moschino products. Id. at ¶6. Indeed, as there are hundreds of graffiti elements on each
11
JEREMY SCOTT’S REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

 Case 2:15-cv-05900-SVW-PJW Document 61 Filed 05/09/16 Page 16 of 16 Page ID #:695

1

item to give them a layered effect of being tagged and tagged again over time, he had never

2

observed the actual use of the word RIME on the graphics in the two items reproduced in

3

the Complaint ¶2 until seeing the Complaint. Id. at ¶7. Thus, the undisputed facts show

4

that he had no knowledge of any alleged infringement of Tierney’s publicity rights. Since

5

there no genuine issue of material fact showing Scott’s actual knowledge, Tierney’s § 3344

6

claim fails as a matter of law. In response, Plaintiff simply repeats his threadbare

7

allegations from his Complaint and provides no evidence to support them.

8
9
10
11
12

B.

Plaintiff Has Failed to Create a Genuine Issue of Material Fact as to
Whether Defendants’ Use Was Transformative.

Scott hereby adopts the arguments in Defendant Moschino’s Reply Brief on the issue
of transformative use and incorporates those herein by reference.
C.

Plaintiff Has Completely Failed to Address Defendants’ Argument That,
at Worst, Their Alleged Activities Constitute Incidental Use.

13

Plaintiff does not even address Defendants’ incidental use defense, thereby

14

conceding the defense. See Satcher, 558 F.3d at 735 (holding that “failure to oppose a

15

basis for summary judgment constitutes waiver of that argument.”).

16

VII. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
PLAINTIFF’S NEGLIGENCE CLAIM.

17
18

Plaintiff’s Opposition entirely ignores its negligence claim and make no mention

19

whatsoever of Defendants’ arguments related thereto. As such, Plaintiff has conceded that

20

Defendants’ must prevail on this claim. See id. (holding that “failure to oppose a basis for

21

summary judgment constitutes waiver of that argument.”).

22

VIII. CONCLUSION

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24
25
26
27
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Plaintiff has failed to show any significant probative evidence that justifies this case
going any further. Defendants respectfully request that the Court grant summary judgment.
Dated: May 9, 2016

ONE LLP
By: /s/ John Tehranian
Peter R. Afrasiabi
John Tehranian
Attorneys for Defendant
JEREMY SCOTT
12

JEREMY SCOTT’S REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT