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H&M Lawsuit Against Street Artist Could Have Changed Copyright Law [UPDATED]

The clothing company claims it has dropped its lawsuit against the artist Revok after widespread outcry and calls for a boycott, though the artist’s lawyer claims that is not true.

Still of H&M’s video from its promotional campaign, featuring artwork by Revok (image via PACER)

Street artists are calling for a boycott of H&M after the Swedish clothing company took legal action against a graffiti artist to refute his rights over his own work. Across social media, artists including INSA, KAWS, and Lady Aiko are denouncing H&M for what they describe as an “assault on artists’ rights,” and calling for a boycott of the company.

H&M’s lawsuit, filed last week in a Brooklyn federal court, is an extraordinary response to attempts by the street artist Revok to receive compensation for his artwork, which features in the retailer’s new advertising campaign without his consent. Revok — the moniker of LA-based artist Jason Williams — had noticed that graffiti he had painted on a handball court in Williamsburg, Brooklyn, had served as the backdrop for an H&M photoshoot. In January, he sent the company a cease and desist letter, demanding that it stop circulating the images on social media and also compensate him. In an initial response, H&M denied his claims, arguing that the graffiti, which covers New York City property, is vandalism, and that Revok has no copyright rights to assert. After Revok repeatedly threatened to sue if no settlement was reached, H&M filed a lawsuit against him.

The suit could have major implications for street artists. If a judge rules in favor of the retail company, the decision could ultimately strip street artists of many rights that protect their work and livelihoods, preventing them from suing for infringement.

“If H&M’s lawsuit succeeds, it could render countless important pieces
of street art and graffiti entirely devoid of any copyright protection,” Revok’s attorney, Jeff Gluck, told Hyperallergic. “This could leave the artwork vulnerable to corporate exploitation without any available recourse for the artist.”

Screenshot of H&M’s Instagram showing an image from its promotional campaign, featuring artwork by (image via PACER)

The work in question is a series of black lines that waver across a blank wall in William Sheridan Playground in Williamsburg. A production company hired by H&M had staged a shoot in front of it last October for a promotional campaign. Upon its completion, the team emailed the New York City Department of Parks & Recreation to ask if it had to pay royalties for including the images. A department official confirmed that the work was unauthorized and that it did not know who was responsible for it.

H&M went ahead and used the footage for its campaign, which has since spread on its social media accounts and remains on its US website despite Revok’s demands. In an email sent to Gluck on January 26, the company’s lawyer, Darren Saunders, argues that Revok’s work “is the product of criminal conduct … the entitlement to copyright protection is a privilege under federal law that does not extend to illegally created works.” Saunders did not respond to request for additional comment.

In filing its lawsuit, H&M also effectively filed a public document that names Revok as an offender. It’s possible that Revok could be charged for vandalizing city property. However, according to Sam P. Israel, managing partner at Sam P. Israel, P.C. Legality, the artist has a “good claim” to have copyright in his work.

“That’s a given,” Israel, who specializes in intellectual property law, told Hyperallergic. “The question now becomes whether H&M can bar him from preceding because of the ostensible illegality of him doing graffiti. The initial question that raises is one of standing: H&M isn’t the city. It’s looking to enforce the city’s rights to not have public property painted over.”

The Department of Parks & Recreation is not a plaintiff in this case. The decision, Israel said, will ultimately depend on whether the judge views Revok’s act as a crime that’s severe enough to impede copyright rights and also how they view graffiti as a form of art. Notably, a recent ruling in February that gave artworks at former graffiti mecca 5Pointz protection under the Visual Artists Rights Act (VARA) might help Revok’s case. Even if that lawsuit concerned sanctioned aerosol works on private property, it was a landmark decision in recognizing the rights of graffiti artists.

As Gluck said, “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.”

Many copyright infringement cases over unauthorized graffiti are settled out of court or lost by artists, according to the Fashion Law blog. Israel wages that this one will be no different and will ultimately end in a settlement.

“I don’t think it’s going to ever be decided because there are too many variables,” he said. “My gut tells me that H&M did this to leverage their negotiating decision so that they can do a deal with the graffiti artist on terms that are favorable to it.”

Street artists are frequently pushed to threaten or take legal action against companies that use their work without permission. Last year, artists who’d made murals with the Bushwick Collective threatened to sue McDonald’s when the fast food giant shot a commercial featuring the murals, and in 2016 the estate of Dash Snow did sue the chain restaurant for ripping off his distinctive “SACE” tag in its décor. And in 2011, street artist Cali Killa prevailed in his lawsuit against Urban Outfitters, which put images of one of his works on clothes without his permission.

Update, 3/15/2018, 4:30pm: According to the Daily Beast, H&M has withdrawn its lawsuit. It shared the following statement:

H&M 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.  As a result, we are withdrawing the complaint filed in court. We are currently reaching out directly to the artist in question to come up with a solution.

Update, 3/15/2018, 6:45pm: When reached by email, Revok’s lawyer said he was unaware of H&M’s decision to withdraw the lawsuit. “I don’t know what they are talking about and have not seen them make any public statement,” Gluck told Hyperallergic. “The lawsuit is not dismissed, and the artwork is even still being used on their website.”

We have reached out to H&M’s lawyers for clarification and will update when we hear back.

Update, 3/15/2018, 10:00pm: Revok’s attorney Jeff Gluck told Hyperallergic via email that he has spoken to the counsel for H&M, who told him that “that they are not in fact dismissing the lawsuit.” Hyperallergic has reached out to H&M’s attorneys and to the company’s PR department to confirm this but has received no response. Its statement noting that it is withdrawing the complaint has been shared as a story on its Instagram account.

Update, 3/16/2018, 11:20am: Court records indicate that the case was withdrawn this morning by “Voluntary Dismissal.”

We will continue updating this story as more information becomes available.

Screenshot of H&M’s Instagram story, as captured this evening (screenshot by the author)
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