Using street art in advertising campaigns fashion

Multinational clothing retailer H&M and graffiti artist Jason “Revok” Williams are currently embroiled in a legal dispute in Los Angeles after the fashion chain used one of Revok’s murals in a recent advertising campaign. The campaign features a male model wearing H&M’s new sportswear line in front of a wall with the artist’s graffiti painted on it. The wall is located at a handball court in Brooklyn.

The graffiti artist’s lawyers responded by sending a letter to the fashion giant, asking it to stop displaying Revok’s work and arguing that by using it without his consent, H&M was committing an act of copyright infringement. They also claim that H&M’s use of Revok’s work may lead consumers to wrongly believe that there is a commercial relationship between the fashion chain and the artist.

H&M argues that entitlement to copyright protection does not extend to illegally created works and, particularly, to works in urban spaces that are a product of criminal conduct (e.g., vandalism). It maintains that unauthorized or illegal work of arts, such as street art and graffiti, should not be entitled to copyright protection and, therefore, that any brand or company should be able to use them without having to pay or obtain consent from the artist. This has sparked off a debate on the validity of graffiti copyright.

However, outside US law, it is worth noting that Spanish law only requires copyrightable works to be original and fixed to a tangible medium. Moreover, the Spanish Intellectual Property Act places certain limitations on copyright protection of works that are permanently fixed in public rights of way. Specifically, this act regulates the possibility of photographing or filming these works (“Works that are permanently fixed in parks, streets, squares or public rights of way may be freely reproduced, distributed and communicated in paintings, drawings, photographs and by audiovisual means”) without having to obtain authorization, thus allowing advertising videos to be recorded without seeking the permission of the copyright owner of a specific work.

We will closely follow how this singular dispute in the US is resolved.