Shelley’s Art Musings: The complexities of illegal art

In my last article, I wrote about my personal views on street art, and how I saw this as art for the masses. I briefly touched on how the majority of street art and graffiti is illegal, with only the most well-known or outstanding artists becoming almost household names and their work being commissioned to adorn walls.

In a twist of fate, a news story recently broke about the complexities of this type of art and the issues it can present in terms of ownership and copyright, which presents us with a really interesting question over what is right and fair in this arena.

To give you an idea of what I am referring to, let’s initially look at the news story and the following reaction from the street art community in the first instance.

The artist known as Revok (Jason Williams) is a well known Los-Angeles based graffiti artist. He has created some amazing pieces, which have been met over the years with varied responses. Back in 2011 Revok was sentenced to 180 day prison sentence for failing to pay restitution as part of his probation to recompense his “victims” in a previous vandalism charge.

Over the last week, stories have hit the media around a piece of work which Revok created appearing in shots of a media campaign by fashion retailer H&M.

The art work, is a series of lines, which are reminiscent a twisted page of sheet music, appear on a wall of a handball court in the Sheridan Playground, Williamsburg, Brooklyn. Then went on to appear in the back of shots used to promote a new range of activewear.

On seeing the advertising campaign back in January 2018, Revok, recognising his own work, started action for copyright infringement, sending a cease and desist letter, since he had not been contacted for the use of the images. H&M then counterattacked with claims that they didn’t require his permission as the art had been created on public property and they had sought permission from the New York City Parks department to use the handball court. The fact that the work had been created illegally on the wall was merely a happy coincidence that they had created their campaign in the same vicinity.

The actions of H&M were then met with the full force of the street art and on line community with boycotts, social media slams and physical reactions of graffiti on H&M stores.

H&M have since dropped the case, and are reported to be working with the artist to come to a solution.  I do question in some cases, how the artist relating to some pieces of street art expect their work to be recognised, especially if there is no motif or identifier.

The issue with this case, had it have gone ahead, is that it would have set a precedent for companies to use any street art without the artists being involved and it would have debunked the idea of the artist owning the intellectual rights of a piece of art they have created down to the location that it has been created in.

Revok is not the only artist who has seen these types of issues over the intellectual ownership of their creations.  Street artists find their work being turned in to all sorts of merchandise.

Otto Schade is one such artist.  His work is easily identifiable, with spherical or ribbonesque images.

Imagine his surprise when scanning the internet he found images of his work printed on to T-shirts which had not been authorised by him.

After putting a call out on social media, the T-shirts were removed, but this is just another case of a company spotting a catchy image and utilising it.

You may think that the big names like Banksy, who has commercialised his artwork would be safe from this copyright infringement, but there have been several cases for him, where either prints have been created and sold by museums without the consent of the artist; or even more extreme the wall in which the art has been created on stolen, only to turn up in an auction, which was halted at the last minute.

This does then raise the question around how we treat art which is created in the public space.  Do we think that because it is on display for free, that companies, or individuals have the right to then commercialise the piece for their own gain?

In some cases, such as the Revok one, where the art was placed illegally, the law is not clear cut, as while the act (no matter how beautiful the art work), is considered a criminal offence, yet the rights of the artist shouldn’t be impacted, as it is their own original creation, the lines can blur leaving both parties with an unclear path that they can follow to get the situation resolved.

For artist such a Banksy and Schade, the case is a little more clear cut, pieces are commissioned (although not all) and then, despite the iconic designs of the well-known artists, companies still feel because the art is in the public space, free to view, it means that it is also free to cash in on.

H&M’s actions sent a clear message to artists, making them feel that this was a much bigger statement of “any and all unsanctioned or illegal artwork should be devoid of copyright protection, therefore be free to use by anyone”.  Granted the community may have jumped on the bandwagon a little, as each case would need to be treated on an individual bases and had the law suits gone ahead, the ruling would have only stood in that court, but it does also give way to be used as an example in further cases of the same nature.

This is a balancing act between retaining public property, allowing artists (well-known and up and coming) the freedom to express themselves, and not trample the artists creation in overly complicated law.  This said, I wouldn’t expect one street artist to sue another street artist, when they tag and paint over a piece, as we know happenings, in the ongoing struggle to find suitable wall space which will give the artist exposure.

For me, this is still a little open ended and I will be watching the progression of how H&M resolve the case with Revok as this will form an example for what happens to illegal or commissioned street art.

Will we ever conclusively know if H&M chose that handball park to film at because of the artwork, or simply because it was a handball court that was conveniently situated?  Potentially not, but you have to admit, Revok’s stark line work created a dramatic background which otherwise would have been a plain grey wall, leaning the argument towards Revok’s artwork benefiting the area despite the original illegal action in creating it in that space.  Also did Revok send a cease and desist notice, with the intention of self-promotion?  Possibly not, but there is the possibility that taking on such a global company, who have come under fire several times for their actions, would cause a media stir at some point, elevating not only the commercial, the new line of active wear, but also the art work which has been used without permission.

What this does show us, as audiences to this art genre, is that street art is beginning to be taken seriously as a form, with cases entering court rooms more and more regularly to seek the recognition for intellectual rights.