Fashion and street art -friends or enemies?

street art H&M

writer icon Iegor Bakhariev     Pexels   |   Business     🕐 05. Apr. 2018

Street art has come a long way. From being regarded a pure vandalism to becoming a significant part of advertisement for famous fashion brands. It is not only about colourful graffiti on walls, now brands like Roberto Cavalli and Moschino include the street art to attract younger generation. However, as it often happens with underground trends, big corporations will try to monetize on artists’ labour as much as they can.

Swedish giant gets sued by a street artist
H&M, the biggest Swedish clothing-retail brand, has now become involved in the rough legal waters over borrowing street art without permission. As far as the fall of 2017, H&M were shooting a promotional video, for which they decided that a neighbourhood in Brooklyn with a handball court with walls full of graffiti is just hipster enough for their audience. Unfortunately, they decided not to contact the artist to ask for his permission. The name of the artists is Jason Williams, or Revok, as he goes by in the world of street art. No wonder that a couple of months later the Swedish company received a cease-and-disease letter from the artist’s lawyer. William’s lawyers claimed that H&M had illegally used the graffiti as a backdrop for their advertisement, and threatened with a lawsuit if appropriate compensation was not provided.

H&M’s lawyers contacted the New York city officials to find out whether they had sanctioned the mural. The city did not know about it, nor did they issue an official permit. Following the findings, the Swedish company took a strong stand and decided to continue airing the ad without permission from the artist. H&M stated that since the graffiti was unauthorized it constituted vandalism, and hence they no longer need to have permission for any further use of the art.

More examples from the industry
The recent legal dispute is just one of a bunch. In the past five years fashion brands have constantly gone to litigation with street artists. Such major fashion brands as Coach and Moschino have been involved in copyright and unfair competitions disputes over unauthorised use of street art. Vince Camuto, an American design store, was sued by a group of well-known street artists, for an unauthorised use of their murals in the campaign for Spring/Summer 2017. Earlier in 2015 Roberto Cavalli was sued by a trio of graffiti artists, including abovementioned Jason Williams. Their campaign, Just Cavalli, misappropriate visual material from the street art graffiti painted on a building in San Francisco. Most of such cases were settled outside of the court, and those that were not, did not favour the fashion brands.

What has H&M argued?
In a nutshell, the lawyers at H&M argued that copyright law does not extend to illegal art. Meaning, it is not a question if the street art constitutes a protectable subject matter, as it certainly does. The bigger question is whether the artists should enjoy copyright protection for the art in cases when they were not authorized by the city officials. Without going far into the formalities of copyright and human rights law, it is important to point out that the law does not provide anything about the legality in the process of making the art.

No American law nor copyright codes in the EU, provide interpretation for such cases. In such situations, the legal practice suggests that one usually should interpret the law broadly. According to the broad interpretation, if the copyright code does not say otherwise, there is nothing that should prevent the artist to enjoy exclusive moral and economic rights over their work.

Odds are on the artists’ side
Most of the lawyers agree with the broad interpretation and believe that the legality of graffiti itself does not affect the rights of the artist over their piece of art. There is also a second group of scholars. They support the idea that unauthorised art does not satisfy a requirement in the constitution to promote dissemination of useful material, and hence does not qualify for copyright protection. However, it seems that the odds are on the side of the artists. First, the case law shows in their favour. Not one of unfair competition and copyright case involving fashion brands and street artists ended in favour of the fashion brand. Secondly, the legal community stands predominantly on the side of the artists, leaving the conservative scholars in minority.

H&M settled the case
The case that have emerged in the wake of popularity of street art in fashion was dead on arrival. The claims by the H&M were met by strong opposition from the legal community as well as the general public. In the light of the fuelled discussion H&M has admitted that their actions were harmful to the art community and in a statement issued on March the 15th: “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 everyone for their comments and concerns, as always, all voices matter to us.”

A lesson to learn
Examining the existing cases in the industry it is reasonable to believe that the street artists now have a much stronger ground in regards to their artistic expressions. It is a general rule that no registration is needed in order to have copyright over the work, which means that once an artist completed a mural the expression is automatically protected by copyright law. The outcome in the case involving H&M has shown that even unauthorised art should be protected under copyright law. However, in order to avoid unnecessary complications, it is always better to register the rights in respective offices.

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