November 19, 2018
Originally posted 2018-11-19 11:20:38
By Shandice Sluch, Staff Writer | www.amdlawgroup.com
The esteemed author William Shakespeare once said, “A rose by any other name would smell as sweet”. Does that same idea apply to the copyrightability of street art?
The term street art is defined as any visual work created in public locations. Some common media include spray paint, stencils, sticker art, street installations, and sculpture. However, the legality of this street art becomes a problem when it is not commissioned. Most call this unauthorized street art, graffiti–or even vandalism. These different ways to describe street art have led to a divide within the legal community.
Under copyright law, only three things are required to qualify for protection. The artwork must be 1) fixed in any tangible medium, 2) an expression, and 3) creative. Graffiti, a subset of street law, undoubtedly meets these requirements. It is a creative expression fixed on a wall or other structure. Therefore, it should be eligible for protection.
If the analysis only looked to copyright law, graffiti artists would win every time. Unfortunately, this simple answer could become more complex when the location of the graffiti art is considered. Those who attach a negative connotation to unauthorized graffiti believe in an expanded analysis. They propose that the distinction between commissioned and unauthorized art should dictate whether or not the work receives protection against infringement.
However, the Copyright Act does not mention or allude to legality as a necessity for protection. In fact, the core purpose of the 1976 Copyright Act is to “promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. The Court has since expanded the definition of “Writings and Discoveries” to include modern forms of art. Graffiti fits within this modern form of art and it fits within the purpose.
To work around this clear-cut conclusion, defendants are forced to use other avenues to disclaim the plaintiff’s right to copyright protection. They often find themselves relying on the “unclean hands” doctrine. This doctrine, originally a defense in contract law, basically states that the plaintiff should not benefit from an illegal act. This definition would technically apply to unauthorized street art. The backdoor defense has been used by many fashion brands, including American Eagle, Moschino, and H&M.
H&M, a well-known Swedish fast fashion retailer, is the latest to use this defense. When REVOK, a popular graffiti artist, noticed his art being used in a H&M advertising campaign, he sent H&M a cease and desist letter. Instead of complying, H&M filed a lawsuit against REVOK. They essentially said his “illegal graffiti art” was not worthy of copyright protection—but it was worthy of being exploited for monetary gain.
After the public heard of H&M’s stance regarding graffiti artists, there was a social media frenzy. Numerous Twitter users called for a boycott of H&M goods. Shortly after, H&M tweeted that they “respected the creativity and uniqueness of artists, no matter the medium”. Despite this statement, the case is still pending in federal court. The legal community anticipates that this case will decide whether graffiti art warrants copyright protection.
The dispute involving H&M and REVOK is not the first copyright infringement case involving graffiti.
As the number of cases regarding graffiti copyrightability increase, the court will have to take a stance.
Should the courts focus on the circumstances surrounding the creation of the street art? Or, should they focus on the rights of the artists, regardless of how the work was created?
In the end, is street art by any other name (graffiti), still art?