In the past months, the E.U has witnessed two judicial cases, regarding “graffiti”, or street art. In both cases, it has made it clear that “graffiti” can be considered as works of art and therefore must be protected as though they are.
Use of “graffiti” in Advertisement, Without the Permission of the Artist
H&M tried to use “graffiti” art, without the permission of the artist.
Last June H&M, the famous clothing chain, filed a case against Jason “Revok” Williams, a “graffiti” artist. H&M asked if the court would permit them to use the work of the artist, printed on walls in New York, as a background for a campaign for men’s sportswear, called “New Routine”, without paying royalties.
Months before, “Revok” had requested that H&M stopped using his street art in the advertising campaign. He claimed that there had been an infringement as a result of the use of “graffiti” which was infringing on his rights to Intellectual Property regarding the work and that there had been a case of Unfair Competition.
Illegal “graffiti”…. Is an Intellectual Property?
H&M responded to the claim. Their argument was that the “graffiti” was illegal. “Revok” had painted it, without the permission of the property owner, the state of New York. The illegal acts of “Revok”, including entering into old buildings and painting in them, did not give the artist any legitimate rights regarding the “graffiti”. H&M added that, in this is the case, the artwork was property of the state of New York and that they had been given permission to use it.
Finally, H&M announced that they have withdrawn their claim. However, the debate around the Intellectual Property of street art remains open.
“Graffiti” as Works of Art and Intellectual Property
5 Pointz. Graffiti as a work of art
Graffiti has been recognised as a “work of art”, with respect to Copyright and Intellectual Property, in the recent Judgement of the “Case of 5 Points”, in the E.U.
The building known as “5 Pointz” was an old abandoned warehouse. Its owner accepted that various street artists painted “graffiti” on its exterior walls. The premises have recently been converted into a genuine street art museum, which had also been painted on legally, with the permission of the owner.
Some 20 years later, the owner decided to renovate the building and painted some white “graffiti”.
“Moral right” of the author to prevent the destruction of their own art.
Graffiti artists have just filed a claim. In the E.U, the artist has “moral right of author” regarding their work and can impede on its destruction.
A conflict remained, then, between the moral rights of the author and the right of the owner of a property.
The 5 Pointz judgement decided in favour of the artists: their works can not be destroyed, without their permission. Is it interesting, because it explicitly recognises that “graffiti” can be works of art, if they have a sufficient “creative height”, which is determined by experts.
Santiago Nadal
