Earlier this month, retail chain H&M filed a lawsuit that seemed poised to address a central question about how copyright law applies to illegal graffiti.  But following a public-relations backlash, H&M has apparently abandoned the suit, leaving these legal waters uncharted for now.
 
The story begins with Los Angeles graffiti artist Jason Williams, who goes by the name “Revok.”  Williams is the creator of a mural at a public handball court in Brooklyn.  In the fall of 2017, H&M did a photo shoot at the handball court; in the resulting promotional video, which H&M used to advertise its clothing on its website and on social media, the Revok mural was prominently visible.  When Williams learned that H&M was using advertising materials featuring his work, he sent H&M a cease-and-desist letter, dated January 26, arguing that H&M had violated his copyright in the work.  (The letter also threatened possible trademark, negligence, and unfair competition claims.) 
           
By March, the parties had been unable to reach an amicable resolution, and on March 9, H&M filed a complaint in federal court (E.D.N.Y. Docket No. 18-cv-01490), asking the court to declare (among other things) that Williams “does not own or possess any enforceable copyright rights” in his mural, and further that H&M’s use of the mural “does not constitute copyright infringement, negligence, unfair competition or any other claims.”  H&M’s complaint explains that municipal officials had confirmed that the mural was created without the city’s permission, and that therefore “H&M’s view” is “that Mr. Williams has no copyright rights to assert because his Graffiti was created through criminal conduct” and “that federal copyright protection is a privilege that does not extend to illegally created works.” 
 
Once news of the lawsuit became public, however, artists and consumers (including prominent artist KAWS, among others) voiced criticism of H&M’s position, with some calling for a boycott of the retailer’s stores.  As the furor mounted, H&M blinked, issuing a statement on March 15 expressing its respect for artists regardless of medium, and saying it “should have acted differently” in responding to Williams.  It further stated that it “was never our intention to set a precedent concerning public art” and indicated that it would be withdrawing its complaint.  The docket indicates that the case was voluntarily dismissed on the 16th. 
 
This is just the latest in a series of graffit art lawsuits in recent years, primarily involving graffiti artists asserting copyright claims against consumer brands (ranging from high-fashion line Moschino to fast-food chain McDonald’s) who have used their work without permission.  In this vein, it’s noteworthy that Williams has been in copyright litigation before; in 2014, he was one of a group of artists who sued fashion designer Roberto Cavalli over a collection of clothing and accessories adorned with graffiti art by the plaintiffs.  The case settled out of court.  H&M is also no stranger to legal tangles with independent artists; the chain has been criticized before for allegedly ripping off music and artwork from independent artists without permission or compensation.
 
This case stood out, however, because it seemed poised to directly confront the question of how copyright law applies to graffiti art that has been created illegally, by artists trespassing upon and vandalizing someone else’s property.  (You may recall that, in the recent high-profile 5Pointz litigation, that question was not at issue because the parties agreed that the artworks there had all been created with permission from the property owner.)  Here, H&M’s complaint expressly took the position that Williams’s mural, as the product of vandalism, was entitled no copyright protection at all. 
 
As a number of art law commentators have observed, there is no textual basis in the copyright statute for that conclusion.  Rather, for a work to be copyrightable, the federal law simply requires that it have some minimal degree of originality, and that it be “fixed” in a “tangible medium of expression”; those requirements set a fairly low bar, which most pieces of graffiti art should be able to meet.  Others have argued, however, that copyright should not protect works that are created illegally.  Because most graffiti art cases in recent years have settled out of court, there is little guidance from federal judges on this topic, although a few years ago the Ninth Circuit held that rock band Green Day’s use of a piece of graffiti art in its concert backdrop was fair use; because the court presumably would not have reached the question of fair use if there were no copyright in the work to begin with, that ruling implicitly suggests that the court at least assumed that copyright attached to the graffiti.  Likewise, the issue came close to a decision in the case of Tierney v. Moschino (Docket No. 15-cv-5900, C.D.Cal.), when the lawyers for fashion house Moschino argued that graffiti artist Joseph Tierney lacked standing to assert copyright claims over Moschino’s use of Tierney’s work because the graffiti at issue was illegal; however, in that case, the court held that, at the motion to dismiss stage, the issue was insufficiently developed, and the case settled before a summary judgment ruling could be issued.
 
Those who argue for the non-copyrightability of illegal graffiti advance a few different rationales.  One is that an exception must be read into the statute for the sake of public policy, so as to not encourage or reward illegal behavior.  But it’s probably an oversimplification to say that, because the work was created through vandalism, it does not advance any social good; query whether, if a great author wrote a poem or story in a stolen notebook, he or she would be denied a copyright.  Another rationale urges that copyright claims, like most types of legal claims, are subject to various “affirmative defenses” that may be raised by infringers, and one of those defenses is an equitable doctrine called “unclean hands,” whereby a plaintiff’s claim might be barred by the plaintiff’s own misconduct.  But it’s unclear whether a defendant like H&M could successfully raise the defense of unclean hands in a situation where the plaintiff’s misconduct did not hurt H&M itself, but only harmed some third-party property owner (here, the city) who is not a party to the litigation.
 
For now, H&M has lost its appetite for being the “test case” for copyrightability of illegal graffiti.  But it’s also been pointed out that, while this question remains unanswered, the stature of graffiti as a respected art form continues to rise.  Street artists like KAWS and Shepard Fairey and others now command high prices and gain attention from museums and auction houses, and superstar graffiti artist Banksy continues to make headlines.  And the 5Pointz decision shows that graffiti art can be considered of “recognized stature” in the art world.  Arguably, as time goes by and graffiti art becomes an increasingly important part of the art ecosystem, that may actually impact the legal landscape as well, as courts perhaps become more willing to guarantee these artists’ intellectual property rights—and as defendants perhaps become less willing to incur the risk (and potentially hefty damages) of an infringement suit, not to mention the public-relations cost of fighting these battles in court.