What’s been going on with H&M lately?
Artists and influencers have been speaking out against the apparel company, leaving many wondering what it the driving force behind this movement. The answer, surprisingly, is intellectual property.
Street art has become extremely popular and increasingly respected as a valid form of artistic expression for decades now. A broad category of artwork where artists make use of spray paint, stencils, stickers, and many other unique methods, street art is often associated with unauthorized or illegal works known more commonly as “graffiti.”
At the heart of the H&M discussion stands a graffiti artist named Jason Williams, better known by his moniker, “Revok.” Cali-based Revok has artwork all over the world, including a spray-painted mural on the wall of a handball court in Williamsburg, Brooklyn. When H&M shot and released a marketing campaign featuring Revok’s artwork as a backdrop, Revok responded by sending a cease and desist letter to H&M claiming that H&M’s campaign was produced without Revok’s knowledge or permission, as should, therefore, be removed from circulation immediately.
What gives Revok the right to make such a strong demand?
Copyright law . . . possibly.
A Valid Copyright for a Valid Form of Expression?
The bar for copyright protection in the United States appears to be pretty low. Copyrights exist in original works that are fixed in a tangible medium of expression. There is little argument whether Revok’s mural is an original creation, and it is hard to find a more tangible medium than a concrete wall on a handball court, so what’s all the fuss about? Doesn’t Revok have rights like any other artist? Shouldn't he have the sole right to reproduce his artwork and to keep others from profiting from his work without his permission?
H&M says “no,” of course. Calling Revok’s mural “unauthorized” and “vandalism,” H&M retaliated in January arguing that graffiti isn’t protected under federal law because it is made illegally and the entitlements of copyright law do not extend to illegal works of art. An uproar from the artistic community ensued when H&M also filed a lawsuit against Revok claiming destruction of the property on which Revok created his work (whether H&M had any right or standing to sue is a topic for a different discussion).
After severe backlash and a PR nightmare, H&M dropped the lawsuit and apologized publicly on various social media outlets saying:
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 are withdrawing 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.
Many see H&M’s response as a victory for Revok and the street art community. However, with this any many other Graffiti-oriented lawsuits being dismissed or settled out of court, we are still left without a concrete answer - whose side is the law on?
We Need Resolution!
On the one hand, copyright law exists to give artists solace knowing that they are protected and remain in control of how their works can be used. Copyright encourages and incentivizes creativity and creation - without copyright protection, artistic expression could be stifled.
On the other hand, street art is often produced without the permission of the owner of whatever property or structure is being used as a canvas. It is a form of vandalism, regardless of how beautiful or awe-inspiring the resulting work is.
Without more clarity, everyone is entitled to their own stance and interpretation on the matter. What are your thoughts?
About the Author:
David "Tyler" Bennett is a business and intellectual property attorney, and he is a partner at Verhagen | Bennett LLP. To learn more about David, please click here.
For questions or comments about this post, please email David directly at: David@VerhagenBennett.com
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© 2018 David T. Bennett — This article is for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.