Unlawful street art used in a promotional campaign: H&M withdraws its complaint

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artists lashed out at H&M harshly over the past few days … so much that last Friday H&M announced via Twitter to have withdrawn the court complaint, saying that it “respects the creativity and uniqueness of artists, no matter the medium.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.”