H & M landed itself in hot water last week from a legal and public relations standpoint. Interestingly, it shone a spotlight on how graffiti and street art should or could be protected. In fact, Founder of Froese Law, Ashlee Froese jumped on to Toronto’s CityNews to weigh in on the issues. Click here for the video link.
An Overview of the H & M Case
In a nutshell, a graffiti artist created street art in a public place. H & M used that graffiti as a backdrop for an ad campaign. The graffiti artist issued a cease and desist letter, citing copyright infringement as the basis of the claim. H & M sought a declaration from the court seeking confirmation that copyright protection does not extend to street art, as graffiti is oftentimes illegally placed on public property. This position, if sanctioned by the court, would have damaging ramifications for graffiti artists as a whole and would leave the industry without important legal rights. It would be tantamount to declaring that an entire industry is exempt from copyright protection.
Ultimately, there was public outcry from the graffiti community that H & M’s position was over-reaching and anti-artist. H & M capitulated and withdrew its proceeding.
As is often the case with ground breaking fashion law cases, this all happened in the US. But Froese Law is keen to look at this issue from the Canadian perspective.
What Makes This Issue Interesting?
Street art/graffiti is slowly becoming more mainstream. Whereas before it was associated with criminal activities, graffiti is slowly becoming a celebrated feature of every city…and, let’s face it, on every social media influencer’s feed! In fact, graffiti is becoming so celebrated that it is being commissioned as part of interior (or exterior) design of restaurants, retail stores, etc. However, graffiti has not been the subject matter of many intellectual property cases. Some of the key questions at hand are:
– Is graffiti art?
– If the art is not commissioned and affixed illegally, should that impact the graffiti artists’ rights?
– If the graffiti is in a public place, is it fair use for all to use?
Essentially, the H & M case opened up a can of worms of where does graffiti fall within the art spectrum and should it fall under intellectual property protection? For graffiti artists, this could have serious ramifications.
What Does the Copyright Act Say…
The threshold for copyright protection is somewhat low:
a) is the work original?
b) has the work been affixed in a permanent way?
If yes, copyright protection exists. There is no need to register the work; copyright protection exists because the work was created. (However, the prudent business approach is to register the work for copyright protection.) The Copyright Act does not contain a caveat withholding copyright ownership based on where the work is affixed, or how.
If the threshold is met, the Copyright Act stipulates that the copyright owner has:
“…the sole right to produce or reproduce the work or any substantial part thereof
in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof…”
It also grants the owner the sole right to:
“to produce, reproduce, perform or publish any translation of the work;
to reproduce, adapt and publicly present the work as a cinematographic work;
to communicate the work to the public by telecommunication,
to present at a public exhibition, for a purpose other than sale or hire”
Thus, the right to display, reproduce and commercialize the work lies with the copyright owner. It is important to note that the rights lie with the owner, regardless of whether the work was created anonymously or not.
It is critical to note that that under the Copyright Act, there are two bundles of rights. One is granted to the owner (copyright rights); one is granted to the author (moral rights). Sometimes the owner and author are one and the same. Sometimes they are different. Sometimes the author’s rights are rendered null and void. (Word to the wise: work with a lawyer – it gets complicated).
So, in addition to the above-noted owner rights, consider that the author of the work also has moral rights. This protects the artistic integrity of the work. Moral rights grant the author:
“…the right to the integrity of the work…
the right, where reasonable in the circumstances,
to be associated with the work as its author or
under a pseudonym and the right to remain anonymous”
So we understand that there are rights granted to the owner and the author. But what constitutes infringement? Simply put, the Copyright Act states what constitutes copyright infringement:
“It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do”
and also what constitutes moral right infringement:
“Any act or omission that is contrary to any of the moral rights
of the author of a work…in the absence of the author’s…consent,
an infringement of those rights”
If you’re not careful, you may be subjecting yourself to two types of infringement.
Should Street Art Be Treated Different than Other Types of Art?
It is challenging to create a blanket statement that a specific type of art should be entirely exempt from copyright protection. However, should the fact that the art is so publicly displayed impact copyright protection? Or that the art was illegally affixed in a permanent state impact copyright protection? It would be up to the courts to make this decision; these factors are not expressly addressed in the Copyright Act. Never say never; it could be tried in court.
The Copyright Act does contain exemptions to infringement, which focus on fair dealing. The Copyright Act specifically defines what constitutes fair use of copyrighted works and, therefore, does not constitute copyright infringement. This includes:
– Private study
– Criticism or review, with certain requirements
– News reporting
– Non-commercial user generated content, with certain requirements
– Reproduction for private purposes, with certain requirements
Fair use dealing does not extend to entities using copyrighted works without consent for their own financial gain.
What’s the Bottom Line?
As society increasingly turns to a shared economy model, there is a misconception that what is publicly available for viewing is also publicly available for monetization and does not have protection under intellectual property laws. This is a dangerous misconception that could be costly.
If you’re an artist that is commissioned for a piece of public art, work with a lawyer to carefully architect who has ownership and authorship rights. If you’re an artist that is displaying your work independently, work with a lawyer to best protect and commercialize your works. If you’re a brand that is moved by a particular piece of street art, work with a lawyer to properly commission the use/commercialize of it.
From the artist’s standpoint, the Copyright Act is your best friend and royalties can be your lifeline. From the brand’s standpoint, consent and licensing rights are your safety belt.