Is Graffiti Protected by Copyright?

By Catherine S. Yao

One of the latest battles over the rights to “unlawful” street art comes from fast fashion brand H&M, over marketing photographs that capture the artwork of graffiti artist Jason “Revok” Williams.  Following a demand from Williams that H&M immediately cease use of the photographs, the clothing company filed suit, asserting that Williams’ work in question was not entitled to copyright protection because the work was “unauthorized and constituted vandalism.”

The public appeared to have little sympathy for H&M and, less than a week after the suit was filed, the company withdrew its complaint and issued a statement, acknowledging that it should have approached the matter differently.

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In the United States, the baseline rule is that copyright exists from the moment that an original work of authorship is fixed in a tangible medium; a low bar.  However, the law remains generally unsettled as to whether illegality in a work’s creation impacts the copyright therein.  Given the murky state of the law in this area, companies should continue to approach with caution.  And, while some may question the merits of the “court of public opinion,” there’s no denying that it has very real consequences.  Coming out on top in a legal battle is likely meaningless when faced with a damaged reputation and lost sales.

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