I Wrote This On A Public Wall…. But, You Still Can’t Use It!

Originally posted 2018-11-19 11:20:37

By Breanna Pendilton | amdlawgroup.com

Miami artist David Anasagasti (or “Ahol” as most people call him) has recently filed copyright infringement against clothing retailer American Eagle Outfitters.  No, they did not steal his clothing designs or illegally use his music in their stores or advertisements (which would be the normal copyright infringement claim against a retail store).  Ahol claims, however, that American Eagle’s recreation of his public street mural entitled “Droopy Eyes”, as a backdrop on their billboard advertising, infringes on his copyright of the work.  American Eagle hired other artists to not only recreate Ahol’s original work, but to also add the American Eagle logo as well.  The Company planned to use it on its web, billboard, and in-store displays around the world.

Ahol is not the first artist to bring “graffiti claims” against companies for copyright infringement.  Other companies which have been involved in these claims include Coach, Sony Music, and Urban Outfitters.  Yet, courts still agree that this is a case of first impression, because until recently, no one has ever tried this in court.  But who should have the benefit of the doubt? What should the court consider?

In my opinion, the court should consider exactly what the complaint suggests: copyright law.  Copyright law only requires that literary and artistic works are fixed in a tangible medium of expression, without any registration requirement.  There is no dispute that Ahol’s work meets this definition.  (I mean, it’s on the wall!  How more fixed and tangible can it be?)  Statutory law mandates that the rights to reproduce the work and prepare derivative works (which is essentially what American Eagle has done) rest exclusively with the author.  Some companies have tried to argue that graffiti is not subject to copyright protection because it is publicly displayed on streets.  If that were the case, then would this not apply to your own billboards that are publicly displayed on streets and sidewalks?  Or what about your clothing designs that are displayed in the streets every day when a person decides to wear your brand?  Yeah, right!

AMD Law’s Tip of the Day:  (It’s an oldie, but goodie) Do unto others, as you would have them do unto you.

American Eagle Advertising

Ahol’s Graffiti Mural

wall 2

Web Sources:

Image Credit: http://theconversation.com/graffiti-copyright-battles-pitch-artists-against-advertisers-30291

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