By Sonia Rao, (c) 2018, The Washington Post
Graffiti artists have long been seen as outlaws. But it appears that, artistically speaking, the law is often on their side.
In a recent campaign for its New Routine sportswear, H&M featured a photograph and video of a model backflipping off a wall with graffiti. Los Angeles-based artist Jason “Revok” Williams recognized the wavy black design as one he had spray-painted on the wall of a handball court in Brooklyn, and, in January, his lawyer sent the retailer a cease-and-desist letter asking for it to refrain from infringing on his client’s copyrighted work.
H&M’s initial reaction was to file a lawsuit against Williams this week, claiming that the product of an illegal act could not be protected by copyright law. But after members and supporters of the street-art community urged their social media followers to boycott H&M, the retailer backed down. Among the boycott proponents was the Portugal. The Man, which shared an image calling the suit a “full-out assault on artists’ rights.”
“We should have acted differently in our approach to this matter,” the company expressed in a statement on Thursday. “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 thank everyone for their comments and concerns, as always, all voices matter to us.”
H&M appears to have removed the campaign from its website.
Revok, who’s well known in street-art circles, recently transitioned into the gallery world. He is represented by theLibrary Street Collective in Detroit.
The debate over street artists’ copyright privileges has entered courtrooms quite a bit over the past few years, according to Philippa Loengard, deputy director of Columbia Law School’s Kernochan Center for Law, Media and the Arts. Revok himself won a lawsuit in 2015, along with artists Reyes and Steel, after Italian fashion label Roberto Cavalli allegedly copied artwork from their mural in San Francisco’s Mission District.
In the H&M case, the company claimed that the art was painted illegally – a reason to deny Revok copyright privileges. Paperwork filed along with the lawsuit stated that “the Graffiti painted by Mr. Williams on the handball court was unauthorized and constituted vandalism.”
The defense wasn’t surprising, Loengard said, but it also doesn’t hold up. At its core, a copyright requires only two things: that the work is original and that it is a tangible medium of expression.
“There are many things that are copyrightable, but illegal,” she said. “… Copyright is not a legal or illegal sanction of the activity that was done to produce the work. Copyright is a separate entity.”
Representatives of H&M also said that the company reached out to the New York City Department of Parks and Recreation to ask whether the retailer needed to pay royalties to the graffiti artist. The department said no, citing reasoning that aligned with something called the “unclean hands doctrine,” explained Jeanne Fromer, a professor at the New York University School of Law, based on her analysis of the case.
“The notion of unclean hands is exactly what you might think: Your hands are unclean; therefore, you can’t assert a claim here,” she said.
Jeff Gluck, Revok’s lawyer, said in an email that had the lawsuit succeeded, it would have rendered “important pieces of street art and graffiti entirely devoid of any copyright protection.” Although the street art community is widespread both physically and in its viewpoints, Fromer added that she suspected most artists would be concerned about the possibility of their work being monetized without their permission.
“I’d be shocked if one graffiti artist sued another graffiti artist for painting over their work, perhaps, or for making an identical copy somewhere else,” she said. “But what they don’t like is their work being used commercially, and that’s without them getting paid.”
The H&M debacle follows another street-art-related case involving 5Pointz, former warehouses in Queens that were transformed into a cultural landmark after artists covered them with hundreds of bright graffiti murals. Last month, a federal judge in Brooklyn ruled that a landlord who painted over murals would have to pay the 21 wronged artists $6.75 million in damages. The judge, Frederic Block, claimed that the landlord had violated the rights of the artists, who had decorated the walls legally.
“5Pointz was an egalitarian place,” Blockwrote in his opinion. “Some artists came from highly prestigious art schools; others were self taught. Some were fixtures in elite, traditional art circles; others were simply dedicated to street and community art.”
Although the specifics of the 5Pointz case differed from those of H&M’s, Fromer said reactions to both point to changes in the way we think about the art form.
“You had a judge who was sympathetic to the street artists just as much as had they been Picasso,” she said. “There has been this shift in accepting street art as part of the artistic canon. … As street art has become more and more acceptable, a lot of people are inclined to look past the trespassing aspect in a way they might not have decades ago.”
The legal street art at 5Pointz, before it was painted over.
