Lately, my social media feeds have been plastered with messages urging consumers to boycott H&M, a major clothing retailer that featured a graffiti artist’s work in an ad without offering him credit or compensation, and later pursued legal action against the artist when he sent the company a cease and desist letter and threatened to sue if they did not comply. According to an article in the arts magazine Hyperallergic, “A production company hired by H&M had staged a shoot in front of [the art] last October for a promotional campaign. Upon its completion, the team emailed the New York City Department of Parks & Recreation to ask if it had to pay royalties for including the images. A department official confirmed that the work was unauthorized and that it did not know who was responsible for it.” Although the artist, Jason Williams, also known by the title Revok, later claimed ownership of the work, H&M claimed that he was not entitled to copyright rights as his unauthorized work is considered vandalism.

As an artist myself, and someone who is interested in creating accessible work that reaches a wide audience and monetizing said work, my thoughts on the matter are conflicted. Both instinct and past experience tell me that artists should always be asked permission, acknowledged and compensated for any external use of their work. However, if an artist creates work that alters public property without having received permission from the public entity that governs said property, is it not hypocritical for him to expect that his work be afforded the legal protection that a piece of lawfully created public art would receive? In other words, how can an artist reasonably expect a government entity to protect his work on the basis that it is his property when he rejected the laws that govern the property on which he created his work?

After all, is a structural element of our environment (like a wall, or a park bench) not also a work of art in the sense that it was designed with a specific intent and purpose in mind? If your standard of judgment relies on an anti-appropriation stance, how can it be okay for an artist to illegally appropriate a legally protected space by transforming it from its intended aesthetic qualities into an element of his own conceptual vision?

While some of these questions provoke answers that lead down dystopian rabbit-holes (think: world where everything is considered art so every alteration is punishable appropriation), they serve as an effective tool for gauging our cognitive biases and intellectual inconsistencies regarding thoughts on copyright law and structural protection of public and intellectual property.

Personally, while I can acknowledge that graffiti is unlawful, I do not believe that its existence outside of mainstream legal structures makes it illegitimate as an art form. In fact, this very characteristic is what has made graffiti a suitable and powerful medium for critique of social, corporate and governmental structures throughout history. The hyper-public and appropriation-friendly nature of graffiti has functioned conceptually as a rejection of rules, resistance to consumerism, and a pointed challenge to the perceived authority of governing bodies. It has represented an embrasure of alternative and anarchic thinking by giving members of the public a peek beyond the Overton window, whether they want it or not.

It is precisely the fact that graffiti exists outside of copyright law that makes it non-viable for traditional consumerist usage. Because it operates outside of the law, it is open to appropriation, re-interpretation, response or removal by anyone. Perhaps many of us wish to draw the line at monetization, because we find it uncomfortable to imagine that work intended to serve non-or-anti-consumerist purposes can aid the sale of products within the very system it seeks to undermine. While it certainly seems paradoxical that a corporation would appropriate graffiti, an art form conceptually associated with opposition to corporate interests, for commercial purposes, it is also paradoxical that an artist would seek to use the force of the law to prevent a corporation from appropriating work that he created in the public sphere evidently outside of law’s purview.

My fundamental concern is that the same laws that could grant graffiti artists protection from corporate appropriation of their work would simultaneously strip that work of its conceptual importance. How can graffiti challenge designations of protected property if anywhere where graffiti is drawn becomes the graffiti artist’s protected intellectual property? Such laws could only facilitate more privatization of public spaces and perhaps even incentivize more unlawful alteration of these spaces. If these laws became the norm, the artist’s potential to make money and gain exposure would be inherent in the production of graffiti. Perhaps those most motivated by profit and publicity, not meaning or message, would dominate the street art scene if the laws governing it prioritized the artist’s total ownership over the fate of his unlawfully placed work. That’s not to say these are necessarily bad motivations, but they’re certainly not in line with what has made graffiti socially and politically resonant over time. Admittedly, I may be venturing down that dystopian path again. No one is arguing that graffiti artists should not be penalized for unlawfully altering public spaces, but again, this argument seems inherently embedded within the one about intellectual property.

Perhaps the core issue that this scenario has brought to light is not about property rights or effective conceptual art at all, but the significance of our how the public perceives spaces designated for them. To whom do these spaces really belong? Is it right for governing bodies to impose limitations on how we interact within them? How important is the preservation of these physical spaces in a world where much of our interpersonal and public interaction takes place outside of them, from behind cell phones and computer screens? While I have more questions than answers, I believe in the value of continuing to ask these questions, in taking hypothetical scenarios to their logical extremes, and acknowledging double standards when I see them.

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1 comment

  1. I believe this is wrong as to the law. Copyright protects original works and is automatic once the work is created. Specifically, it gives the creator the sole right to copy the work, and allows the creator to license or sell this right any way they choose. Neither its art form, nor its conceptual importance, nor its hypocrisy, has any legal bearing at all. The relevant factors are: is it an “original work”, was the claimant its sole creator, and was the creator working as an employee? (If he/she did it as part of a normal work duty his/her employer owns the right to copy.)

    This means that the graffiti artist owns the copyright, period. He owns the right to make copies, and if he doesn’t give you permission to make a copy you’ve stolen from him — for a copyright is property. What rights does the building owner have? Did he create it? No?: Then he holds no right to copy it.

    Your two other examples become easy. The park bench is copyrighted unless it is more than seventy years old, in which case copyright has lapsed. The corporation who made it owns the copyright, as the actual designer was hired to do it. When a competitor violates this copyright the companies that own it can, and do, go after them. The wall, on the other hand, is not copyrightable; a blank wall is not an original work.

    Of course the building owner owns the right to paint over it, and the city has the right to charge you with violating an ordinance. Ownership of the right to copy a work doesn’t give you any other rights.

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