Page 23 - Katten Kattwalk and Kattison Avenue - Winter 2026 - Issue 5

concern about becoming “corporate sellouts, willing First, as discussed in our introductory Passle post
to trade their artistic independence, legacy and
credibility for a quick buck” suggest that the graffiti
at issue is in fact illegal. While there is no precedent
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on point and legality is not an explicit prerequisite
for protection under the Copyright Act, courts have
suggested that an illegal work may not be entitled
to copyright protection under the laws of the United
States. In contrast, under UK law, artists “are
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entitled to the full scope of copyright entitlements,
irrespective of the illegality of their work.”
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So, the obvious question remains: why are British
artists suing a British fashion house over graffiti
on British buildings, in America? Perhaps they
are hoping to land on a judge who interprets the
Berne Convention — which enables infringement
actions over foreign works in the United States — as
requiring the court to decide copyright ownership
under the law of the country that has the closest
Smith v. Vivienne Westwood, Inc., Case No. 2:25-cv-01221 Smith v. Vivienne Westwood, Inc., Case No. 2:25-cv-01221
relationship to the work, in this case, UK law, and
copyright infringement under the laws of the United
States. But that hope may be dashed by a judge who
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interprets the same convention as requiring both
copyright ownership and infringement to be decided
under United States law, which, as discussed, may
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not protect illegal graffiti.
Regardless, even a judge whose interpretation of
muddled precedent is colored by her appreciation
for graffiti artistry might find that DISA, SNOK and
RENNEE cannot enforce their claimed copyright
against Vivienne Westwood.
about this case, while these artists may pursue their
copyright infringement claims under the Berne
Convention without having registered their tags with
the United States Copyright Office, they probably
are not entitled to recover either statutory damages
or attorneys’ fees without registrations in the United
States.
Second, Vivienne Westwood’s use of images of DISA,
SNOK and RENNEE’s graffiti in a collage print on
clothing may be fair use under the Copyright Act.
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According to the Supreme Court’s most recent (and
hotly contested) interpretation of “fair use,” regardless
of how literally transformative the unauthorized use
of copyrighted work may be, the larger the difference
between the purpose or character of the use at
issue and the original work, the “more likely the
[analysis] weighs in favor of fair use.” “The smaller
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the difference, the less likely.” A court may find that
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the admitted difference between the purpose and
character of DISA, SNOK, and RENNEE’s graffiti and
Vivienne Westwood’s use of that work, is akin to
the difference between Andy Warhol’s paintings of
the Campbell’s soup can and Campbell’s copyrighted
logo, which the Supreme Court exemplified as fair
use: just as Warhol’s Soup Cans series is “an artistic
commentary on consumerism,” and the purpose
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of the copyrighted logo is “advertising soup,”
the goal of the artists’ graffiti here is to “reference
and harken back to their cultural origins, in which
youths from marginalized groups spray-painted their
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