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The H&M advertisement |
Street art and copyright have been increasingly at the centre of
attention. Katfriend Angela Saltarelli (Chiomenti) reports on a case that was
initially brought by H&M against a street artist and – nearly as fast as
the creations of fast fashion-focused businesses - has been now settled.
Here’s what Angela writes:
“H&M, the famous Swedish fast fashion
retailer, sued on March 9 last an LA-based graffiti artist, Jason “Revok”
Williams, before the US District Court for the
Eastern District of New York, requesting a court order that would enable
the company to use Revok’s artwork in the background of its new men’s
sportswear campaign called “New Routine”, without paying any royalty.
Before the lawsuit, on January 8, 2018 the
street artist had sent H&M a cease and desist letter, complaining about the
unauthorized use of his artwork in the fashion retailer’s new campaign, requesting
compensation for copyright infringement, negligence and unfair competition.
H&M reverted back to Revok’s letter
with this complaint, arguing that the graffiti was unlawful and constituted
mere vandalism. The retail giant claimed that the making of an illegal act,
including criminal trespass and vandalism to the detriment of property of New
York City, would entail that the artist does not own any enforceable copyright
on his work.
On a subsidiary basis, H&M stated that
its production team for the campaign went to the New York City Department of
Parks and Recreation (“DPR”) to request whether it needed to pay
royalties for using the graffiti images as part of its campaign. H&M stated
that DPR confirmed that the company should not pay anything.
This case created in few days a heated
debate in both the legal and artistic community [see, eg, here].
As to legal debate, some commentators have
held the view that the US Copyright Act does not make any difference between artworks
that have been legally created and those which have not, only requiring the
work to be original and created on a fixed medium. On the other hand, others
have submitted that illegal artworks are not copyrightable, because they fail
to promote the progress of science and useful arts, as stated in the US Constitution.
As to the artistic community, street
artists lashed out at H&M harshly over the past few days … so much that
last Friday H&M announced
via Twitter to have withdrawn the court complaint, saying that it “respects the creativity and uniqueness of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.”H&M
announced also that they contacted Revok to find an amicable solution.
The legal debate over copyright protection
of street art created in conditions of unlawfulness remains therefore open.”
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