H&M Hennes & Mauritz

In the world of street art, shunning overly commercial projects in order to maintain street cred is a well-known concern. So, when Jason “Revok” Williams created a large gridlike work on the side of a wall in William Sheridan Playground in Brooklyn, N.Y., he didn’t hope that it would end up in a promotional video for H&M’s new men’s activewear collection. His work as the backdrop to sell fast fashion? That isn’t something many graffiti artists would want. Yet, there it was, in an ad for a pair of $34.99 mesh sports shorts.

As soon as Los Angeles-based Williams, a highly respected street artist, got wind of the retailer’s unauthorized use, he enlisted lawyers to inform H&M of his legal rights in the graffiti. He had been through this before when Roberto Cavalli incorporated elements from the San Francisco Mission District-located mural Williams created with fellow street artists Reyes and Steel into its Just Cavalli “Graffiti” collection in 2014.

Instead of removing the allegedly infringing photo and video from its e-commerce site, H&M responded to Williams’ threat of copyright infringement litigation with a lawsuit, asking a federal court in Brooklyn to declare that it was not on the hook for copyright infringement because Williams has no copyright rights. He had, according to H&M’s lawsuit, committed “illegal acts in connection with the graffiti, including criminal trespass and vandalism to New York City property,” and as a result, lacked grounds to claim copyright protection.

Less than a week after H&M filed suit against Williams, the Swedish company issued an apology and said it would withdraw the case, stating, “We should have acted differently in our approach to this matter. It was never our intention to set a precedent concerning public art or to influence the debate on the legality of street art.”

This is hardly the first time a fashion brand has been caught with spray paint on its hands. Moschino and its creative director Jeremy Scott were hauled into court by Joseph “Rime” Tierney after his Detroit-based “Vandal Eyes” mural landed on the red carpet at the Costume Institute Gala in 2015, by way of a dress by the Italian brand worn by Katy Perry, and a Moschino suit jacket worn by Scott.

Vince Camuto was on the receiving end of a copyright infringement lawsuit in July for allegedly making use of the work of Joseph “Rime” Tierney, Cary Patraglia, Spencer Valdez and Keith Rowland, a group of well-known street artists, in its spring 2017 ad campaign.

In 2014, Miami street artist David Anasagasti filed suit against American Eagle Outfitters Inc. for featuring his famed Miami “Ocean Grown” graffiti in a global advertising campaign without his authorization, and around the same time, artist Maya Hayuk filed suit against Coach for allegedly using her New York City mural, titled “Chem Trails NYC,” as the backdrop for its ads.

These cases almost always settle quietly due, at least in part, to the barrage of bad press that routinely follows from a multinational company using a street artist’s work allegedly without his or her authorization for its own financial gain.

“The real concern here,” said Williams’ lawyer, Los Angeles-based Jeff Gluck, is when a company “sees value in using graffiti for advertising to boost revenues and appeal to a target demographic, they also simultaneously appear to undermine and discredit graffiti artwork and the culture.”

In the case that Tierney filed against Moschino, the parties were able to settle out of court, but not before Moschino’s lawyer argued that Tierney was an “unabashed felon” who did not obtain permission from the building owner before creating his mural, and therefore, did not have any copyright rights to speak of.

“As a matter of public policy and basic logic,” Moschino’s legal team argued in a court filing, “it would make no sense to grant legal protection to work that is created entirely illegally.”

Copyright law is silent on the protectability of illegally created graffiti, and the near-uniform settlement of these cases means that judges rarely have the opportunity to rule on whether the law provides protection for illegally created street art, as opposed to commissioned graffiti. Given the lack of a bright line rule, this is a hotly contested issue among graffiti artists, fashion brands and intellectual property scholars alike and one that often results in litigation.

Nonetheless, the law appears to be on the side of the street artists, particularly since copyright law is “pretty permissive in conferring rights,” said Jeanne Fromer, an intellectual property professor at New York University School of Law. In order to receive copyright protection, an individual need only create an original work of authorship that is fixed in a tangible medium, which is “an easy bar to surpass, particularly when someone is intentionally setting out to create art,” she said.

An additional bit of good news for street artists: While graffiti has long been viewed as less respected than other, more traditional, art forms, the perception of this medium is changing. A 1982 artwork by Jean-Michel Basquiat, for instance, sold for a record $110.5 million at Sotheby’s auction of contemporary art in May, while British graffiti artist Banksy’s works are routinely exhibited across the globe, including in a recent $40 million exhibition at Auckland’s Aotea Centre in New Zealand.

So what does the rising prestige of graffiti as a bona fide art form mean for fashion brands and their enduring penchant for using it? It means they might need to think twice before putting it on everything from runway dresses to advertising materials.

“Decades ago, a judge might have thumbed his or her nose at street art,” said Fromer. Not any longer.

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