How Graffiti Artists Are Fighting Back against Brands That Steal Their Work
Graffiti art by 5Pointz, 2007. Photo by Chris Messley, via Flickr.
Graffiti artists are having more and more run-ins with the law, but not the kind in which they’re caught by cops, spray-paint can in hand. Instead, a slew of recent lawsuits shows how graffiti artists have become increasingly savvy about going after companies that infringe on their copyrights.
In 2018 alone, Swiss artist Smash 137 sued General Motors for copyright infringement; American artist Revok was sued by H&M after sending the Swedish retailer a cease-and-desist letter; the artists KEPTIONE and DJ RAKUS sued sunglasses maker Oakley for using their work in an ad campaign without their consent; and artists whose murals were painted over at the graffiti center 5Pointz in Queens, New York, were awarded millions of dollars by a federal judge.
The 5Pointz decision, which the owner of the property is appealing, has been especially significant in cementing the legal standing of graffiti. In February of this year, a federal judge in Brooklyn ordered 5Pointz owner Jerry Wolkoff to pay $6.75 million to 21 artists whose works he had whitewashed overnight, and without warning, in November 2013. (Demolition work on the building didn’t begin until the following summer.) The ruling held that Wolkoff had violated the Visual Artists Rights Act (VARA), which ensures artists’ rights to their works, even if they were created on someone else’s property.
Graffiti art by REVOK Photo by Carnage NYC, via Flickr
“One of the most important contributions of the 5Pointz litigation is to establish firmly that there are no inherent differences between types of visual art as far as VARA is concerned,” said Eric M. Baum, the lawyer who represented the artists in the case. “An outdoor mural is just as much entitled to protection as any other form of art.”
The implications of the 5Pointz ruling may have been lost on H&M. In January of this year, Los Angeles-based Revok sent the brand a cease-and-desist letter after a mural he had created on a Brooklyn handball court was featured prominently in one of the fashion retailer’s commercials without the artist’s permission. Two months later, H&M filed a federal lawsuit against Revok, alleging that he couldn’t claim copyright to the mural because it was painted illegally. If the artist hadn’t gotten permission to paint it, H&M appeared to reason, the brand didn’t need his permission to use it in their ads.
“Whereas an artist may not have the rights to the physical property they altered (they may not be able to sell that physical property), they should have the intellectual property rights, such as copyrights,” said Leila A. Amineddoleh, a cultural heritage and intellectual property attorney who also teaches art law at Fordham University (and is an Artsy contributor). “The graffiti artists are still creating art,” she added, “and that is exactly what the U.S. Copyright Act intends to incentivize: creative arts.” Following a swift backlash and calls for a boycott, H&M withdrew its lawsuit against Revok.
Graffiti art by 5Pointz, 2012. Photo by Annette Bouvain, via Flickr.
As graffiti has come to be seen as a visual shorthand for authenticity and creativity, major companies in every industry—from fashion labels and automakers to that paragon of multinational dullness, McDonald’s—are increasingly trying to tap into its “cool” factor, often without seeking the artist’s permission.
Last year, for instance, sunglasses maker Oakley reproduced murals by KEPTIONE and DJ RAKUS as part of an international campaign in its stores, advertisements, and catalogues without the artists’ knowledge or permission. When the two artists sued Oakley in June of this year for copyright infringement, the company countered that the works were not sufficiently creative to be protected.
In a letter to KEPTIONE, DJ RAKUS, and Jeff Gluck (an intellectual property lawyer who has represented a number of graffiti artists in their copyright infringement litigation), a counsel for Oakley argued that “for a work of authorship to be original, it must possess at least some modicum of creativity. Because your client’s generic, graffiti-style markings fail to meet this minimum threshold, they are not eligible for copyright protection, and cannot be infringed.” The artists’ case against Oakley is ongoing.
Graffiti art by REVOK, Los Angeles, 2008. Photo by A Syn, via Flickr.
“The Copyright Act is very clear,” said Gluck. “Any original work of authorship fixed in any tangible medium of expression is entitled to copyright protection. Period.”
To be sure, many companies and nonprofits—from Domino’s Pizza to UNICEF—have also had success commissioning murals and campaigns from graffiti artists. So what can companies do to avoid lawsuits with artists, and the P.R. backlashes that often follow?
“Learn the artist’s market before you call them to do a graphic for $500,” said Roger Gastman, a graffiti historian and one of the curators of the Los Angeles Museum of Contemporary Art’s landmark 2011 exhibition, “Art in the Streets.” “If an artist sells a print for $500 each, and they have an edition of 100 that they release, [which] then sells out in 30 minutes, they’re not going to do a graphic for you for $500—the math doesn’t work,” Gastman said. “Think about how long it takes someone to create, think about their overhead, think about what their market value is, and then think about respecting their time.”
Until such practices become the industry norm, the surest way to stop companies from infringing—and to enforce copyright protection, if necessary—may simply be for artists to prominently sign their murals, and (as uncool as it may seem) register them with the U.S. Copyright Office.
“Graffiti artists should challenge copyright infringers in court in order to create precedent to protect other artists,” Amineddoleh said. “Graffiti artists should also register their copyrights, place notice on their works (with the ‘©’ symbol), and actively monitor the market for anyone infringing.”