09-15 MARCH 2020 BIGISSUE.COM | p 33
Street artists used to play a game of cat and
mouse with the authorities; now they are
playing the same game with global brands.
This is the blessing and curse of street art
becoming big business. David Ge�fen recently
paid £23m for David Hockney’s 1967 painting
The Splash, but Banksy’s Devolved Parliament
sold for £9.9m last October despite being only
a decade old – far exceeding the £2m it was expected to go for.
Banksy now breathes the rarifi ed air of Sotheby’s and his work
triggers phenomenal bidding wars, but those street artists still using
Shoreditch, Brooklyn or Melbourne as their canvas can see big brands
come in, appropriate their work and stamp on their intellectual
property rights.
Global names like H&M, Oakley, British Airways and General
Motors have all been accused of using street art in ad campaigns
without giving the artists due credit or payment. When legal action
is taken against these brands, some of the defence arguments
wheeled out have been, frankly, ludicrous. Je�f Gluck, the legal counsel
for Oakley, argued in 2017 that using the work of Keptione and DJ
Rakus (real names Donald Robbins and Noah Darr) in an ad without
permission was fi ne as their art lacked a “modicum of creativity” and
therefore was not “eligible for copyright protection”, meaning it could
not actually be infringed.
H&M, meanwhile, was subject to a copyright infringement, unfair
competition and negligence claim by LA street artist Revok (real name
Jason Williams) in 2 0 18. The Swedish retailer argued the case should
be dismissed because the artist’s claim to copyright ownership was
null and void as the work was done illegally and therefore constituted
“vandalism”. H&M had moved to countersue Williams, but eventually
withdrew the action a�ter it spilled on to social media and the company
woke up to the enormous damage to its reputation that could result
from behaving like a corporate Goliath looking to crush a plucky
spraycanning David.
Alex Watt is an intellectual property lawyer and head of advertising
and marketing at Browne Jacobson in London, who is well known for
representing street artists. He works with agencies like the Global
Street Art Agency as well as artists such as Ben Eine, Shok1 and CEPT.
He says artists like his clients tend only to work on ‘legal walls’
where they have received permission from building owners. Their
artwork is now of such value that owners o�ten recognise the
opportunity that one of their pieces on a building represents.
This negates any accusations of vandalism and the resulting
supposition that a criminal act somehow counters their claim to
ownership of copyright.
“Artists of this calibre are either invited to work on the walls they
use or they have done a deal with the person who owns the walls,” he
says. “So they really are legal walls.”
The aesthetic of street art, its burning sense of rebelliousness and
underground cool, is what makes it so appealing to brands. They
want to use it in their advertising as they feel it will confer that same
iconoclasm to the products they are selling.The context of use, however, is critical here. For example, having
someone photographed in front of a giant mural in designer gear
or holding up expensive headphones is seen to be making a direct
correlation between that product and that art. The use is obvious, but the
steps to protect the artist can be less so.
“Occasionally, brands – or more o�ten their agencies – will not bother
contacting the artist and just use their artwork without permission,”
says Watt.
“Legally speaking, they’re using copyright – that has been created and
is owned by the artist – without permission, which is an infringement
of the artist’s exclusive right to exploit that copyright. We will then act
for that artist by contacting the brand that has infringed the copyright
in their artwork and ask them to pay the artist the fair price they should
have paid them in the fi rst place.”
He adds: “The fact that brands are also taking advantage of the artist’s
own fame means that they may also be able to bring an additional claim
for ‘passing-o�f’. It’s e�fectively a claim for ‘false endorsement’. It is a really
interesting one for lawyers working in this area, and claims like this will
increase as street artists get more famous.”
There is one key exception here – namely incidental inclusion of
street art in a photograph. It can boil down to interpretation, but it is hard
to argue that a model standing directly in front of a piece of street art is
anything other than intentional inclusion and therefore drawing on the
copyright of the art. But street art on a wall in the distance in a photo,
even out of focus or only partially seen, could fall under the incidental
inclusion clause.
Copyright law can help protect street artists, but it can also cause
complications if what they paint
incorporates existing works, logos or
images for reasons of parody or critique.
Watt says a copyrighted work can be used
in a “transformative” way in the US but
the UK and EU do not have the same ‘fair
use’ provisions.
He cites the case in December where
the appeals court in Paris ruled that Je�f
Koons’ Naked sculpture, pictured right,
infringed the photograph Enfants by
French artist Jean-Francois Bauret. “That
presents street artists, who comment
on current events and images with
di�fi culties,” says Watt.
Most legal cases here are settled out
of court. Sometimes this is the brand
wishing the whole thing would quickly
disappear; but equally it can be because
the artist in question does not want their
identity to be revealed. As such, with no
real legal precedents being set in court, the same problems can happen
again and again. Let’s call it Groundhog Spray.
Social media petitions have tilted the balance and brands know
they can no longer steamroller over artists. In many cases, brands are
not doing this with malice – o�ten they are unaware that rights must be
cleared here – so it can be a simple case of pointing out what they did
wrong and reaching an amicable settlement. The more public disputes
there are like the ones with H&M, the more likely brands and agencies
will be educated not to do that.
Cities like Glasgow and Melbourne are encouraging and fostering
street artists and slowly public perception of this work is changing. The
“vandalism” line of argument seems woefully anachronistic now and,
at its very best, street art is starting to be considered as serious artwork.
That will make it more attractive to brands, but equally it will give it
more protection against egregious copyright infringements by major
corporations.
“You're going to see lots more artists, like Ben Eine, attaining rock star
status where they are well-known, they are very wealthy and everyone
wants to be them.” says Watt. “That’s what’s going to happen.”Eamonn Forde is a freelance journalist and author
@Eamonn_FordeTREET ARTHAS BECOME
BIG BUSINESS, AND
GLOBAL BRANDS WANT
A SLICE OF THEKUDOS.
LEGALLY, IT’S ABOUT TO
GET VERY INTERESTING.
WORDS: EAMONN FORDE