ASK THE ART LAWYER. Graffiti and Street Art The Rights of the Artist, the Property Owner and Recent Legal Developments. PART ONE

By Octavio Robles, AIA, Esq.

This is a two part series that discusses the issues surrounding Graffiti and Street Art. What are the rights of the parties? Is it vandalism or art? Perhaps sometimes both. What are the rights and remedies of the artist, the affected private property owner or governmental jurisdictions and what has been going on in the evolution of the body of law and related cases affecting these issues?

In part one, the issues and law related to the unlicensed appropriation of either authorized or unauthorized graffiti or street art images will be discussed. Part two will deal with the rights of artists, property owners and government entities over the images and actual physical works involved in authorized and unauthorized graffiti or street art. It will also discuss the Visual Artists Rights Act or VARA.

GRAFFITI OR STREET ART

Street art commonly refers to various forms of art created in public spaces. It could be commissioned and done in a legal context or it could be spontaneous and illegal. Many art forms comprise Street Art. It is usually a visual art form encompassing painting, sculptures, street installations, chalk, stickers or pasted posters among others. Graffiti is usually illegal, painted and pure vandalism, however creative. An important concept to understand is that in either, visual street art or graffiti, copyright protection attaches regardless of whether the work is commissioned and legal or spontaneous and illegal. Equally important to understand is that unless the artist owns the medium or surface where the work is depicted, the artist only owns the image and all rights to reproduce it but not the art work itself. Therefore, any unlicensed appropriation or infringement of the image beyond provisions in the copyright law for fair use, which will be discussed below, can become an actionable cause of action by the artist against the infringer. In cases where the art work is commissioned and the owner of the surface where the art is depicted has hired the artist to produce the work, depending on the terms of the agreement, particularly if it falls under the guidelines of a work-for-hire, the resulting image may be rightfully owned by the property owner. It would even be conceivable that a work-for-hire could be commissioned by a person who does not own or have permission to alter the subject surface and the copyright to the resulting image would be owned by the person hiring the artist and not the artist himself. Naturally, under such circumstances, both the artist and the commissioning person would be effectively guilty of vandalizing the affected surface and subject to remedies that the property owner may have. This will be discussed further in part two of this article.

COPYRIGHT AND FAIR USE

Copyright protection under the act applies to “originally authored works fixed to any tangible medium of expression from which it can be communicated either directly or with the aid of a machine or device.” Whoever emerges as the owner of an image subject to copyright protection under the scenarios discussed above, has the right to reproduce, license, sell and dispose of the image. If someone infringes on the copyright, the owner of the copyright can bring legal action to remedy the infringement. The fair use provision in the copyright law refers to incidental use of the protected image as opposed to its specific direct use. For example, a photograph containing among other things, the protected image in its public context, without implying authorship, would likely fall within the fair use doctrine. Additionally, a reproduced version of the protected image used in the context of education of by reference would also likely fall within the fair use doctrine.

Ahol Sniffs Glue while painting Ocean Grown, the mural that was subject of the lawsuit against American Eagle Outfitters. Courtesy of the artist and Gregg Shienbaum Fine Art.

ARTISTS CLAIM THEIR RIGHTS

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During the last two years, there have been various cases where commissioned legal street art has been allegedly appropriated and the artist’s copyright infringed upon. In mid 2014, a Miami street artist named David Anasagasti brought legal action against American Eagle Outfitters for copyright infringement. The Cuban-American Anasagasti, who goes by the name Ahol Sniffs Glue, sought monetary damages against American Eagle for using one of his best known images legally painted on a wall in Miami’s Wynwood Art District in an international advertising campaign without his authorization. According to Gregg Shienbaum, who owns the gallery in Wynwood that represents Anasagasti, American Eagle’s action distorted and damaged the reputation of the artist and the parties ultimately settled the case.

A second such alleged infringement case was also brought last year by three artists from California against fashion designer Roberto Cavalli. In the lawsuit, which also targets other defendant retailers, artists Jason Williams, Victor Chapa and Jeffrey Rubin, who go by the names Revok, Reyes and Steel, allege that Cavalli’s company illegally appropriated their San Francisco Mission District mural, which was commissioned by the property owner, and extensively used the image in Cavalli’s new “Graffiti” collection without permission. The suit also alleges violations of the Federal Lanham Act and accuses Cavalli of making the artists appear as “sellouts” in the eyes of those who recognize and follow their work.

In another recent case, New York street artist Joseph Tierney, who goes by the name of Rime, brought Federal legal action in California against the Milan fashion company Moschino and its head designer, Jeremy Scott, for copyright infringement as well as for trademark violations under the Lanham Act for allegedly stealing the image of one of Rime’s murals, named Vandal Eyes, that was painted in Detroit with permission from the property owner. The infringed image was used in a dress worn by singer Katy Perry and a matching outfit worn by Mr. Scott in a gala appearance at the Metropolitan Museum of Art in New York. Similarly to the case against Cavalli, this case also raises the prospect of damages for the possible public perception of a “sellout” by the artist. Moschino denied the allegations and said that it would “vigorously defend” the lawsuit. Rime is seeking the destruction of all offending products and for all the proceeds that Moschino received from the illegal activity together with the recoupment of all damages suffered as a result of the infringement. Rime has participated in various commercial collaborations with brands including the likes of Adidas and Converse and therefore may have more to lose than others that lack such licensing agreements. Moschino is claiming that Rime’s action tries to silence the company’s rights to free speech and has filed a Motion to Strike and Dismiss Rime’s lawsuit. The case is pending.

A pending case in Miami involving a group of seven artists against a church in the Wynwood Art District of Miami claims that the church allegedly misappropriated the use of images of murals painted by the group of artists for free. The artists claim that the church used the art as background in social media, flyers and other communications without the permission of the artists. The popular church, named Vous Church, which rents space from a middle school, has a popular pastor that married Kanye West and Kim Kardashian and has a new reality show. One of the artists and plaintiff is Ahol Sniffs Glue who was also the plaintiff in the case that settled against American Eagle Outfitters, discussed earlier. The artists are seeking damages and the church wants to settle the case and still be able to use the images in their media. This is a case that is still pending and the church claims that the use of the images is incidental and fall under the doctrine of fair use. The artists claim that the murals were done for the benefit of the school and the kids and therefore, the church was not entitled to use the images simply because it was renting space from the school.

Octavio Robles, AIA, Esq. is a legal contributor to ARTDISTRICTS and a member of the Florida and Federal Bars (Southern District of Florida). He is a Florida Supreme Court Certified Mediator and Approved Arbitrator; a member of the Construction Committee of the Real Property, Probate and Trust Law Section, the Art and Entertainment, and the Alternative Dispute Resolution Law sections of the Florida Bar; and a member of the American Institute of Architects, Art Deco Society of Miami and Copyright Society of the USA. He holds licenses as a registered architect, state-certified general contractor and real-estate broker in Florida and is a LEED-accredited professional. He received his Juris Doctor degree from the University of Miami School of Law in 1990. He holds master’s degrees in architecture and construction management and a bachelor’s degree in design, all from the University of Florida. His practice is limited to art, design, architecture, construction and real-estate law.