Published in NH Bar News (6/18/2018)
One of the latest battles over the rights to “unlawful” graffiti comes from fast fashion brand H&M, over advertising photographs and video that captured the artwork of Los Angeles-based graffiti artist Jason “Revok” Williams. Following a demand from Williams that H&M immediately cease its use of the campaign materials, H&M filed suit, asserting that Williams’ work in question was not entitled to copyright protection because the work was “unauthorized and constituted vandalism.”
The public appeared to have little sympathy for the clothing company, which faced backlash on social media platforms and calls to boycott the brand, particularly from members of creative industries. Graffiti writer Alan Ket posted a call to action on Instagram, declaring, in part, “We must not allow this company to use our artwork and appropriate our culture to sell their products, for their own financial gains, while at the same time allow them to devalue and delegitimize our artwork, our culture, and everything we work for.”
Less than a week after filing the suit against Williams, H&M withdrew its complaint and issued a public statement, avowing that it “respects the creativity and uniqueness of artists,” and recognizing that it should have approached the matter differently. The company appeared to acknowledge the murky state of the laws surrounding copyright and unlawful street art, adding that it was never its “intention to set a precedent concerning public art or to influence the debate on the legality of street art.”
H&M certainly isn’t the first big fashion company to allegedly misappropriate street art. Williams, along with a group of other artists, previously took action against fashion designer Roberto Cavalli for copyright infringement and violation of the Lanham Act. In 2015, Moschino and its creative director Jeremy Scott were sued for use of street art by artist Joseph Tierney, known as “Rime,” in the fashion house’s clothing line without the artist’s permission. Scott also faced allegations of copying the work of graphic artist Jimbo Phillips in 2013. Notably, each of these disputes were ultimately settled out of court.
In the United States, the baseline rule is that copyright exists from the moment that an original work of authorship is fixed in a tangible medium; a low bar. The Copyright Act does not expressly provide that illegality in a work’s creation negates or bars copyright protection. On the other hand, companies such as H&M have asserted that, due to the illegal nature of the activity, e.g., vandalism and/or trespass, directly involved in the creation of unsanctioned street art, the artist does not have valid or enforceable copyrights therein. Legal scholars have also acknowledged potential difficulties in addressing and protecting copyrights in illegal street art. While street art as a whole has risen in popularity over time, gaining attention in the art community as well as in the fashion world, many street artists remain anonymous, in part due to the often unlawful nature of their activities. Moreover, disputes as to ownership of unsanctioned street art, and the rights to move, modify, or sell the same, have arisen as well. That a theoretically copyrightable work has been placed/fixed onto the property of another without permission inherently creates a conflict between property and copyright laws. No bright line rules have emerged in this area and, as most copyright cases addressing unsanctioned street art continue to be settled out of court, little precedent has been set to offer guidance. Nonetheless, it seems that more and more artists, including street artists, are becoming aware of their intellectual property rights and that they may have a leg to stand on, even when it comes to “unlawful” works.
Given that the law in this area remains unclear, companies should continue to approach with caution. While some may question the merits of the “court of public opinion,” there’s no denying that it has very real consequences. With the prevalence of social media, through which street artists may have garnered a significant following, public retribution is likely to come more swiftly than legal judgment. And, ultimately, coming out on top in a legal battle is likely meaningless when faced with a damaged reputation and lost sales.
Catherine is an associate in the firm’s Intellectual Property Practice Group, where she works to assist clients with all issues relating to the protection of their intellectual property. In addition, she is a registered patent attorney licensed to practice before the United States Patent and Trademark Office (USPTO).