Bite-size Summary of Legal Issue

Question: Can a company use a graffiti artist’s work without the artist’s permission, if the graffiti was done illegally?

Answer: The courts haven’t decided yet.

H&M, no stranger to controversy, is yet again in trouble in the “court of public opinion.” What did they do this time? The retailer used graffiti art as a backdrop for a recent advertising campaign without getting permission from the graffiti artist, Jason “Revok” Williams, to use his work. Yet the company says when it attempted to identify the artist, it was unable to do so and found that the art was created illegally. Still, many people called for a boycott of H&M because of its actions, causing H&M to back down and drop the ads in question.

The H&M ad

Although the dispute is over (for now), this situation raises several questions. Who was right and who was wrong, both ethically and legally? Can illegal graffiti art get legal protection? Should an artist be able to profit from his illegal work?

In terms of ethics, when a major corporation wants to make money off an artist’s work, the corporation should pay the artist. For sure. But if an artist flouts the law and disregards a property owner’s rights by imposing his work on the property without permission, and then turns around and tries to use the law to protect his (intellectual) property rights, it feels a bit hypocritical.

But this begs the question: does Revok even have any intellectual property rights in his illegally created street art?

The short answer is that it’s unclear, although at least one case has suggested that illegal graffiti might not be eligible to receive copyright protection.¹Villa v Pearson Education

For a fuller answer, let’s start with some basics. Generally, a person who creates any sort of creative work automatically gets certain rights to that work under Copyright law (see our Guide to Copyright Law). Essentially it means that other people or companies can’t copy or use part or all of the work without permission from the original creator. And often, but not always, the creator expects payment in exchange for permission to use the work.

As for street art in particular, it’s pretty clear that copyright law generally applies, at least to work created on property with the property owner’s permission.²Villa v Pearson Education But so far, none of lawsuits involving illegal street art have made it to a final decision. They all appear to have resulted in undisclosed settlements, with the companies probably paying off the artists to keep the disputes out of the spotlight.

While settlements might make the disputing parties happy (or maybe not), they are annoying for those of us who just want answers to these legal questions. But that’s how our legal system works: actually about 95% of cases settle before a trial even starts.

So until we get a case that allows a court to rule on this issue, we just won’t know for sure whether illegal graffiti art gets any rights. We’ll keep you posted.

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