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Why that story about H&M stealing graffiti isn’t so simple

Update: the brand says they had no intention of setting a legal precedent and are withdrawing their complaint

Another week, another social media campaign to boycott H&M. This time, the controversy stems not from race (in January, an ecomm image of a young black boy in a ‘coolest monkey in the jungle’ hoodie led to widespread outrage) but graffiti.  

A screenshot has been circulating among street art communities, claiming that a lawsuit filed by the company poses a threat to artists’ rights. “Fashion retailer H&M filed a lawsuit in Federal Court in New York, allegedly asking the court to essentially rule that any and all unsanctioned or illegal artwork, such as street art and graffiti, should be devoid of copyright protection and can be used by any brand or corporation, without any payment or even needing the artist’s permission.” It goes on to say that this could lead to millions of pieces of artwork legally unprotected and available for corporate use.

Sounds bad, right? Well, H&M has filed a lawsuit, but the good news for concerned artists is that it’s not quite as straightforward as the viral image suggests.

A rundown of the case at hand, as reported by Julie Zerbo of The Fashion Law: “Jason ‘Revok’ Williams, a famous Los Angeles-based graffiti artist, sent H&M a cease and desist letter, alleging that the Swedish fast fashion giant had ‘included (his) original artwork in an advertising campaign for H&M products without his permission or knowledge.’” Some of Revok’s work is indeed seen in the background of a promotional image, but there’s one problem. It was painted illegally, on New York City property. Rather than drop the images, H&M filed a suit in response, arguing that if the art in question violates the law, it shouldn’t be protected by copyright.

“Is H&M really asking the court to rule that ‘any and all’ unsanctioned or illegal artwork should be devoid of copyright protect and thereby, be free for anyone to use? No” – Julie Zerbo, The Fashion Law

But the circulating screenshot that has people worried, Zerbo says, “is overly broad and simplified to the point of inaccuracy.” “Is H&M really asking the court to rule that ‘any and all’ unsanctioned or illegal artwork should be devoid of copyright protect and thereby, be free for anyone to use? No. Is what H&M is doing by using Revok’s graffiti in the background of its commercially-motivated ad campaign ethically questionable (assuming it is not fair use, which it very well may be)? Yes, but that does not mean that we can skew the narrative to serve our own purpose.”

Still, headlines like “H&M wants to steal street art for its marketing” (Paper) make for sexier reading than the intricacies and facts, “which are whether or not illegality is a bar to copyrightability in accordance with the provisions of the Copyright Act in light of a lack of a bright line rule in terms of whether unauthorised graffiti (as opposed to commissioned street art) is – or is not – protected by copyright law.”

While a ruling in this case (which may well be settled out of court) could set a precedent for this particular court (the Eastern District of New York) Zerbo says it won’t apply for the country as a whole. “That is not how it works.”

“Every case is fact-specific and so it’s not fair to say that if the court were to rule in favour of H&M that illegal graffiti would not be protectable by copyright law. Since the vast majority of cases settle long before trial, we may never get a ruling on this.”

Update: H&M has issued the following statement, and is withdrawing its complaint.