The legal protection of graffiti - an analysis of the Moschino X Rime case

Clarice Fernandes Santos

Graffiti, once illegal and suburban, has evolved into modern art and now inspires major names in the fashion industry. Even so, graffiti still carries an informal and ephemeral character and remains a frequent target of plagiarism, especially where legal protection and consolidated case law are still developing.

Graffiti art has increasingly been appropriated by consumer markets. In many situations, however, that commercial use is disconnected from artist authorization, often based on the mistaken assumption that street art is automatically public property. Legal disputes between fashion brands and graffiti artists have grown, particularly where artwork is reproduced in fashion products without authorization or proper identification of the artist.

In 2015, New York graffiti artist Joseph Tierney, known as Rime, filed suit against Italian brand Moschino and designer Jeremy Scott for unauthorized use of one of his graffiti works on a dress from the Fall/Winter 2015/2016 collection, worn by model Gigi Hadid on the runway and later by singer Katy Perry at a gala event.

Source: Glamurama Source: Lilian Pacce

Rime argued that the design was copied from his well-known mural "Vandal Eyes," created for an art organization in Detroit, Michigan, in 2012, including his signature. He also alleged that the names "Moschino" and "Jeremy Scott" were spray-painted over the design, as if they were part of the original work or as if the work had been created by Jeremy Scott.

According to reports from The Fashion Law, Moschino argued there was no copyright infringement because the graffiti was allegedly an act of vandalism, since there was no permission from the building owner. The defense stated: "Blatant and willful violations of the law cannot and indeed should not result in an award of copyright privileges." The argument is contradictory, especially because the same graffiti was used as artistic expression to compose the collection.

The defense went further by comparing the claim to potential rights that the killer of Elizabeth Short (the Black Dahlia case, Los Angeles, 1947) might have asserted over publication of crime-scene images. It argued that an unlawful act cannot generate legal rights, drawing a parallel with Rime's mural.

The dispute did not reach final court judgment and was settled confidentially in 2016. Tierney later stated that he considered the outcome a victory: "I'm glad the case is resolved. I'm very pleased with the result. Graffiti is an art form that deserves the same respect and legal protection as other forms of expression."

This raises the first key question: does graffiti receive legal protection?

Brazilian case law has increasingly recognized graffiti as an intellectual work that may be protected under copyright law (Law No. 9,610/1998), although legal protection for urban art still faces practical and doctrinal challenges.

Law No. 12,408/2011 amended art. 65 of Law No. 9,605/98 (Environmental Crimes) to decriminalize graffiti while keeping tagging as a criminal offense, but it conditioned lawful graffiti on consent from the holder of the physical support:

Art. 65. To tag or otherwise deface urban buildings or monuments: Penalty - detention from 3 (three) months to 1 (one) year, and fine. Paragraph 1. If the act is carried out on a listed monument or protected property due to artistic, archaeological, or historical value, the penalty is detention from 6 (six) months to 1 (one) year, and fine. Paragraph 2. Graffiti is not a crime when carried out to enhance public or private property through artistic expression, provided there is consent from the owner and, when applicable, from the tenant or lessee of private property and, in the case of public property, with authorization from the competent authority and compliance with municipal rules and regulations issued by governmental bodies responsible for preservation of national historical and artistic heritage.

That leads to a second question: can copyright protection exist for graffiti created without the property owner's consent?

While criminal law may prohibit unauthorized artistic interventions, civil law protects both author and work, creating an infraconstitutional conflict. Brazilian copyright law does not expressly state that illegality bars protection. The legal requirements remain originality and fixation in a physical support. Therefore, the intangible dimension of the work may still be protected, as Law No. 9,610/98 does not categorically exclude works created through unlawful means.

A third question concerns the public nature of graffiti. Some argue that artworks in public places may be freely reproduced because the author has supposedly abandoned patrimonial rights, based on art. 48 of Law No. 9,610/98:

Art. 48. Works permanently located in public places may be freely represented through paintings, drawings, photographs, and audiovisual procedures.

However, art. 48 must be interpreted together with arts. 77 and 78 of Law No. 9,610/98: representation of works in public places may be free, but when the use is commercial, directly or indirectly, prior authorization from the author is required.

In 2017, Brazilian magazine VIP used graffiti artwork as the background for a fashion editorial without crediting the author or obtaining authorization and was ordered to compensate the artist.

The magazine relied on art. 48, unsuccessfully. The appellate opinion held:

"Artwork placed in city public space, as part of public heritage, still generates moral and patrimonial rights for its author when a photograph is improperly used to illustrate a product marketed by a third party with no link to tourism or culture. (...) Authors have exclusive rights of exploitation. Public display does not return ownership to the public domain nor remove the artist's exclusivity to capture economic value from use. Otherwise, it would be equivalent, mutatis mutandis, to denying Michelangelo authorship of the Sistine Chapel frescoes merely because they are in a heavily visited public place. The appellant's intent to use the drawing as a commercial plus for its merchandise is clear." (TJSP - Appeal No. 10052213320138260020 - Reporting Judge Salles Rossi - DJE 05/31/2017).

Therefore, if artwork is used to illustrate a product commercially exploited by a third party for profit without proper authorization, copyright infringement occurs.

In addition, the defense thesis used by Moschino to justify exploitation of graffiti in its collection would likely not be accepted under Brazilian law, since copyright protection focuses on the intangible work itself, regardless of the means used to create it.