by Shaina Blakesley
The case: a company’s lawsuit against a graffiti artist after using their work in its campaign advertisement.
Is graffiti vandalism or works of street art? The idea of copyright blurs the line due to the fact that graffiti is curated through an illegal act.
Zachary Hill, patent lawyer, claims that since graffiti transpires through a criminal act, it isn’t street art, which is typically commissioned.
The word graffiti is understood to imply that permission to create art on the property hasn’t been granted. Commission-based street art is currently protected from copyright, while graffiti isn’t.
The popular fashion store H&M filed a lawsuit on March 9 against graffiti artist Jason ‘REVOK’ Williams attesting that “the entitlement to copyright protection is a privilege under federal law that doesn’t extend to illegally created works.”
This lawsuit stemmed from the cease-and-desist order the famous Los Angeles-based artist made that was sent to the Swedish-based franchise on Jan. 8 regarding the company’s use of his work on a Brooklyn handball court.
H&M was promoting its sportswear line, New Routine, which featured images and a video of a model doing a backflip off of the wall where REVOK’s art was displayed.
Before the filming and photoshoot took place, the hired promotion company tasked with creating the marketing campaign asked New York City’s Parks and Recreations Department if it was permitted to use the art or whether artist permission was first required.
The department heads promptly responded that the graffiti shouldn’t have been there in the first place, and that no permission from the, at the time, unknown vandal was needed.
REVOK noticed his graffiti art was in the background of the image and thus the legality of unsanctioned art debate began.
According to Heather MacDonald from the New York Times, graffiti may be celebrated in various institutions like the Museum of Contemporary Art in Los Angeles or the Museum of the City of New York, but neither would appreciate it on its own premises. These institutions would revere these acts as vandalism and defacing its property.
The U.S. Constitution awards some intellectual property protections in order to “promote the progress of science and useful arts.” In the grand scheme of things, illegally defacing someone else’s property doesn’t further the aspiration of propelling art.
What explicitly warrants copyrighted art from commercial use? According to the Copyright Act, protection is granted to “original works of authorship fixed in any tangible medium of expression.” In this case, REVOK created art that was strictly his own on a fixed wall in New York. However, this wall didn’t belong to REVOK.
The Copyright Act doesn’t clearly state whether or not criminally sanctioned art is forwarded copyright protection. Section 103 of the act is often used to cite that unlawfully created works don’t get the privilege of being copyrighted. It states “protection for a work employing preexisting material in which copyright subsides doesn’t extend to any part of the work in which such material has been used unlawfully.”
Cornell Law School explains this to mean that “the bill prevents the infringer from benefiting, through copyright protection, from committing an unlawful act.”
The brand’s intent wasn’t to set a legal precedent on the copyright protection of graffiti or to infringe on the creative works of such artists. Furthermore, H&M didn’t need REVOK’s permission to show his art in the background as he himself wasn’t granted the right to paint over New York City’s Parks and Recreations Department’s property in the first place.
In this technological age, advocates for artists’ rights ran amuck on social media solely to popularize their art form. In retaliation, they partook in vandalizing various H&M store locations with tags slandering H&M.
Before ascertaining the whole story, social media activists jumped to conclusions and circulated a viral image without any facts.
The case was reported by Julie Zerbo of The Fashion Law and she states that it “is overly broad and simplified to the point of inaccuracy.” The company’s intention wasn’t to ask the court to bar any and all copyright protections for illegal and unsanctioned artwork, and up for grabs by any person or organization. Zerbo continues by stating that ethically the company’s actions may be questionable, “but that doesn’t mean that we can skew the narrative to serve our own purpose.”
The decision from this case may be settled out of court, but the precedent set isn’t for the entire country, but rather on a case-by-case situation.
H&M has retracted its lawsuit against REVOK and issued a statement regarding the issue.
The statement said “it was never our intention to set a precedent concerning public art or to influence the debate on the legality of street art. As a result, we are withdrawing the complaint filed in court. We are currently reaching out directly to the artist in question to come up with a solution.”
Art as a whole is about freedom of expression, and graffiti follows that suit as well. Graffiti, when first produced, doesn’t have a monetary value and the artist doesn’t make a profit of it. A company featuring a cityscape with hundreds of buildings, which are works of art to the architect, as its backdrops isn’t copyright infringement because the company isn’t making money off the background but from the product its marketing.
REVOK’s creative work wasn’t explicitly used to create a profit, therefore was not a copyright infringement. Society today should stop being sue-happy and believe every little thing violates their freedoms; at this rate, nothing we do or say would be permitted under such strict readings of the law.