Do 'Vandals' Have Protectable Copyrights In Street Art?

One of the latest battles over the rights to "unlawful" graffiti comes from fast fashion brand H&M, over advertising photographs and video that captured the artwork of Los Angeles-based graffiti artist Jason "Revok" Williams. Following a demand from Williams that H&M immediately cease its use of the campaign materials, H&M 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 the clothing company, which faced backlash on social media platforms and calls to boycott the brand, particularly from members of creative industries. Graffiti writer Alan Ket posted a call to action on Instagram, declaring, in part, "We must not allow this company to use our artwork and appropriate our culture to sell their products, for their own financial gains, while at the same time allow them to devalue and delegitimize our artwork, our culture, and everything we work for."

Less than a week after filing the suit against Williams, H&M withdrew its complaint and issued a public statement, avowing that it "respects the creativity and uniqueness of artists," and recognizing that it should have approached the matter differently. The company appeared to acknowledge the murky state of the laws surrounding copyright and unlawful street art, adding that it was never its "intention to set a precedent concerning public art or to influence the debate on the legality of street art."

H&M certainly isn't the first big fashion company to allegedly misappropriate street art. Williams, along with a group of other artists, previously took action against fashion designer Roberto Cavalli for copyright infringement and violation of the Lanham Act. In 2015, Moschino and its creative director Jeremy Scott were sued for use of street art by artist Joseph Tierney, known as "Rime," in the fashion house's clothing line without the artist's permission. Scott also faced allegations of copying the work of graphic artist Jimbo Phillips in 2013. Notably, each of these disputes were ultimately settled out of court.

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. The Copyright Act does not expressly provide that illegality in a work's creation negates or bars copyright protection. On the other hand, companies such as H&M have asserted...