Not three months into 2018 and fashion retailer H&M has likely sharpened the final nails to put in its own unsustainable coffin — this time by pissing off street artists.
The Swedish company started the year on a downward slope with plans to shutter 170 stores. Later, the clothing giant upset recording artist The Weeknd, who cut ties with H&M after the brand shared a photo of an African American child wearing a sweater with the text reading, "Coolest Monkey in the Jungle." The Weeknd expressed being both “shocked and embarrassed” at the racially insensitive image.
But the burning itch that may be the end of H&M's retail reign came this past March, when the company released images of its New Routine activewear shot against a handball court in Brooklyn. Innocent enough. Except, the background featured street art painted by graffiti artist Revok (aka Jason Williams).
Revok sought to be credited for his artwork after seeing the ad and hired a lawyer to claim the use was a copyright infringement. But H&M came back saying the New York City parks department deemed the graffiti was done illegally, thus no copyright law was in play. H&M then made the mistake of filing a larger suit that would have given Revok no copyrights to the artwork at all, and if passed, would set a precedent that any and all illegal graffiti is fair game for corporations, fashion phonies, megalomaniac sales machines … etc., etc. … to use for their own profit (or at least backgrounds for streetwear and athleisure marketing).
Moving forward with the larger suit, H&M put the spotlight on the event while raising an important question: Does intellectual property law protect unsanctioned graffiti art?
“Under current copyright law, a work immediately receives protection if it is an ‘original work of authorship fixed in any tangible medium of expression.’ 17 U.S.C. § 102(a),” says Litigation Associate Brittany M. Elias and Trial Attorney Bobby Ghajar in a piece published by The American Bar Association in 2016. “Along with this protection, an artist has a bundle of exclusive rights to reproduce the work, prepare derivative works, distribute copies, and display the work publicly. These rights were traditionally understood as belonging exclusively to the artist, but this view has evolved with respect to unsanctioned street art.”
They go on to say, “Although the copyright statute does not expressly state that illegality effects copyrightability, scholars have emphasized Section 103 of the Copyright Act — excluding copyright protection for derivative works made illegally — to justify the argument that illegal works are similarly not entitled to copyright protection. Likewise, courts and scholars have argued that illegal works are not copyrightable because they fail to ‘promote the progress of science and useful arts’ as set forth in the U.S. Constitution.”
So the answer is … there is no straight answer yet, because there haven’t been enough cases to set a solid precedent.
However, Elias and Ghajar raise one more fact about graffiti art and intellectual property law that relates to the H&M/Revok graffiti case: “There is an inherent conflict between property law and copyright law, giving the property owner essential rights that would otherwise belong exclusively to the artist. This splitting of rights can often lead to situations where the property owner, not the artist, engages in legal action concerning the underlying graffiti work.”
Does that put the power in the hands of the NYC parks department?
The David v. Goliath trail between Revok and H&M won’t do anything to clarify the muddy laws. People lost their shit upon news of the suit H&M filed, so much so that by March 15, H&M reversed their decision and said it would pull the suit.
— H&M (@hm) March 15, 2018
But by then, it was too little too late. The story had already gone viral and commenters were in full force bashing the retail chain, saying things like, “ya’ll getting real good at saying sorry” and “they thought they were gonna use someone's art without their consent and it was gonna be all good just because it was a graffiti writer's art.”
Another follower summed up the problem as, “You want to appropriate a culture and profit from it for free. Don’t believe that we don’t see it.”
But the artists potency in the scene was a main reason the public was exposed to the problem. Because when Revok decided to take action, he was already well known — someone LA Weekly said is a “superhero among the spray-can set and one of the L.A. Sheriff's Department's most wanted vandals.” Revok has even gone so far to stand up for his artwork as to spend 180 days in jail back in 2011 for violating probation on a misdemeanor vandalism charge by failing to pay “adequate restitution.” Then again in 2009, he was arrested in Melbourne, Australia after tagging a series of large works.
But the issue remains: do street artists have rights to illegal work? This one never got the chance to play out in court. But in the face of public opinion, H&M hurt itself where it matters most.