Graffiti and copyright: Why big brands can’t just use street artists’ work without consent


A couple of months after the ad for their “Coolest Monkey in the Jungle” hoodie drew the ire of many people including NBA Star LeBron James and singer The Weeknd, fast-fashion brand H&M once again found itself in hot water—this time, for trying to sue a street artist who didn’t want them to use his work in promoting their products.

Here’s what happened: the company posted an ad promoting their new sportswear line called “New Routine” that features a man backflipping off a wall with graffiti on it. The graffiti happened to be the work of Jason Williams, more known as Revok, and was used in the video without his permission.

image source

Jason Williams is one of the most prominent graffiti artists in Los Angeles. He is a member of Seventh Letter, a collective of West Coast artists, and of Mad Society Kings, a popular graffiti crew. Aside from his street art, Revok’s other works have been exhibited in galleries in the United States, Europe, and the Middle East.

After spotting his mural on the video, Williams asked his lawyer to send a cease and desist letter to the company, stating that it was an “unauthorized use of his original artwork” and is “likely to cause consumers familiar with his work to believe there is a relationship between the parties.” He simply didn’t want people to think he was associated with the brand in any way.

In response to the letter, the company filed a federal lawsuit against Williams. The lawsuit asks the court to declare that Williams has no copyright to assert over his mural because it was created illegally, like most street art.

“The entitlement to copyright protection is a privilege under federal law that does not extend to illegally created works,” the brand wrote to Williams.

The lawsuit prompted many members and supporters of the street art community to criticize the company and call for people to boycott them. In a short piece published by Lodown Magazine, Roger Gastman, an American graffiti and street art expert, stated that the lawsuit could “render millions of murals and important pieces of artwork worldwide completely unprotected and available for corporate use, without any payment or permission needed whatsoever.”

#fuckhm #revok @_revok_ #graffiti #graffitiart

A post shared by Mr.Mae (@monsieur_mae) on

Gastman also stated that the art community “must not allow this company to use our artwork and appropriate our culture to sell their products for their own financial gains.”

“There are many things wrong in the world today, and most of them are far more important than this issue. But if we don’t take action now, many artists may one day see their artwork plastered all over an advertisement for some brand they hate and there would be nothing they can do about it,” he said.

Jason Williams’ lawyer, Jeff Gluck, aptly summarized the root of the uproar against the brand in an interview with Juxtapoz Magazine:

“Regardless of how anyone may feel about the underlying legal issue of illegal graffiti being protected, the real concern here is that while H&M sees value in using graffiti art in their advertisements to boost their revenues and appeal to their target demographic of young people, they also appear to simultaneously undermine and discredit graffiti artwork and the culture via this legal action.”

As a response to the backlash, the brand issued the following statement last March 16:

“H&M respects the creativity and uniqueness of artists, no matter the medium. 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.  As a result, we can confirm that we have withdrawn the complaint filed in court. We are currently reaching out directly to the artist in question to come up with a solution. We thank you for your comments and concerns, as always, your voice matters to us.”

However, Jeff Gluck stated that the company has not withdrawn the complaint as they have announced. “This evening I spoke with counsel for H&M. They informed me that they are not in fact dismissing the lawsuit,” he said to Hypebeast.

Street art and copyright laws

This isn’t the first time Williams’ work was used by a brand without his consent and without proper compensation. Williams, along with fellow street artists Victor Chapa and Jeffrey Rubin (known as Reyes and Steel, respectively), sued and won against Italian fashion label Roberto Cavalli in 2015 for selling products that featured elements that were allegedly copied from a mural that the three artists collaborated on.

Other street artists have seen their works used by big brands for promotional materials without their permission. In 2014, David Anasagasti a.k.a Ahol Sniffs Glue, saw his best known and oldest image—that of numerous drowsy and squinting eyeballs layered on top of one another—used in an American Eagle Outfitters international campaign. The brand eventually chose to settle the resulting lawsuit outside of court.

A mural by Ahol Sniffs Glue (top) and an American Eagle Outfitters’  advertisement (bottom).

Also in 2014, visual artist Maya Hayuk sued singer Sara Bareilles and her handlers Sony Music and Epic Records for copyright infringement because they used images and video shots of a popular Hayuk mural to promote Bareilles’ music and concert tour. Hayuk also sued the luxury brand Coach for using the same mural as backdrop to sell their products.

Sara Bareilles standing in front of Hayuk’s mural for a promotional ad (top) and Coach‘s ad using the same mural (bottom).

These are just some of the more popular cases of copyright infringement in the street art community. In many instances, the big brands who allegedly appropriate the works use the same defense as H&M used against Williams—they insist that since the graffiti is illegal, it is not entitled to copyright protection. This is referred to as the “unclean hands doctrine.” Simply put, the defense states that if a person who is asking for a judgment has done anything unethical in relation to the subject of the lawsuit, s/he cannot have the help of the court.

However, copyright laws in most countries apparently do not support this defense. A copyright requires only two things: that the work is original and that it is fixed to a tangible medium (a canvas, a wall of a building, etc.). This means that there are many things that are copyrightable even if they were created illegally (as in forms of vandalism).

While the issue continues to be a gray area in most countries, the rising popularity and acceptance of street art has helped many artists to win lawsuits against brands or corporations that used their works without their permission. In February, for example, the owner of the 5Pointz warehouse in Long Island, Queens was made to pay $6.75 million in damages to 21 artists after having the building demolished and destroying the street art pieces that covered it. The building was destroyed to make way for high-rise luxury residences.

The 5Pointz building in Long Island, Queens. image source

5Pointz is known as a graffiti mecca and a cultural landmark of the city. Street artists from around the world would go to it in order to paint on its walls, and buses full of tourists and students would visit it daily.  By ruling in favor of the artists, the court showed that graffiti, like other forms of art, deserves to be protected by law.

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