image: Gucci

image: Gucci

Just over a week after H&M filed a strongly-worded lawsuit against Jason “Revok” Williams, H&M was strong-armed into withdrawing its case. But before the Swedish fast fashion giant’s counsel was able to file a notice of voluntary dismissal with the New York federal court in connection with the case – in which H&M asserted that the famous Los Angeles-based graffiti artist’s work was not entitled to copyright protection due to the trespassing and vandalism that Revok perpetrated to create the mural – the retailer was dealt a marked blow by the court of public opinion.

Once news of the lawsuit that H&M had filed hit the web, social media was abuzz with fury that the fashion brand would take such a stance, one that has been characterized as a pure-and-simple “assault on artists’ rights.”

In the face of a full-blown public relations nightmare, including calls for a boycott, H&M issued a statement, apologizing for its lawsuit and vowing to drop its case against Revok, who had threatened H&M with a lawsuit of his own weeks prior after the brand used his Brooklyn, New York-located mural in one of its ad campaigns without his authorization.

Had the case gone before a court, the issue would have centered on whether Revok’s mural is protected by copyright law, or whether, as H&M argued, he lacked rights because of the illegal acts associated with the unauthorized work, which was created on New York property.

This is hardly the first time a fashion brand has been embroiled in a legal battle over graffiti. Moschino and its creative director Jeremy Scott were hauled into court by Joseph “Rime” Tierney after his Detroit-based “Vandal Eyes” mural landed on the red carpet at the Costume Institute Gala in 2015, by way of a dress by the Italian brand worn by Katy Perry, and suit jacket worn by Mr. Scott, himself.

In that case, counsel for Moschino and Scott similarly argued that “as a matter of public policy and basic logic, it would make no sense to grant legal protection to work that is created entirely illegally.” They further asserted, “Brazen and willful violations of the law cannot, and, indeed, should not result in the award of copyright privileges.”

In 2014, Miami street artist David Anasagasti filed suit against American Eagle Outfitters Inc. for featuring his famed Miami “Ocean Grown” graffiti in a global advertising campaign without his authorization, and around the same time, artist Maya Hayuk filed suit against Coach for allegedly using her New York City mural, titled “Chem Trails NYC,” as the backdrop for its ads.

And Mr. Williams, along with fellow street artists Reyes and Steel, sued Roberto Cavalli in 2014 after the brand incorporated elements from their San Francisco Mission District-located mural into its Just Cavalli “Graffiti” collection without their authorization.

In much the same way as the H&M lawsuit was swiftly settled out of court, these cases rarely make it to court due, at least in part, to the barrage of bad press that routinely follows from a multinational company using a street artist’s work allegedly without his or her authorization for its own financial gain.

Also, more often than not, the scales are tipped in favor of the big brands, which almost always have significantly more resources (and oftentimes, litigation insurance) to devote to each round of costly litigation. The imbalance of power is another reason why it is usually in the interest of the street artists to see these lawsuits settle.

Since these cases tend to settle long before they get in front of a judge and the Copyright Act is silent on the protectability of illegally-created graffiti, we do not have a bright line rule. So, where exactly do we stand? Well, it is worth noting from the outset that the bar for obtaining copyright is very low. A work need only be: Original and composed in a fixed medium. Nowhere in the Copyright Act does it expressly state that illegal creation of an artwork is a bar to copyrightability.

Still yet, in a handful of the settled-or-unsuccessful cases involving graffiti that we have seen – for instance, in one unsuccessful case, the 9th Circuit held that Green Day’s use of another’s graffiti in one of its videos constituted fair use because the graffiti appeared for such a short time in the background) – many courts have considered (although not issued a ruling) graffiti within the realm of copyright law rather than merely tossing it aside due to the illegality factor.

The recently-decided case that centered on the rights that graffiti artists had in the now-destroyed work that adorned 5Pointz, an industrial complex in Queens, New York, while not specifically addressing the copyrightability of graffiti, can still be viewed as a win for street artists. As Revok’s counsel Jeff Gluck told Hyperallergic, “The recent 5Pointz victory was an indication that courts are willing to place value on graffiti and consider it a legitimate and protectable form of artwork.”

What does the state of the law, paired with the very real potential for public outrage mean for fashion brands? It means you do not want to be caught with spray paint on your hands.