Susan Scafidi was quoted in an Ad Age article about copyright protections for graffiti art. Recently H&M received a cease-and-desist letter from street artist Jason Williams whose graffiti art was included in a recent H&M activewear advertising campaign.
Legal experts say the case could have big implications for the graffiti debate, especially because H&M is not the first retailer to fight back on copyright infringement cases rather than simply paying out for use after receiving cease-and-desist letters. Earlier this year, Forever 21 filed a similar motion against Gucci regarding a trademark on stripes, while Steve Madden sued designer Cult Gaia over a bamboo bag.
“It depends on if you think of graffiti artists as street artists or as vandals,” explains Susan Scafidi, academic director of the Fashion Law Institute at Fordham Law School. “There is nothing in the copyright act that says art that is illegally created can’t be subject to copyright, so technically, yes it should be, but if you take the vandalism perspective, then it’s understandable why this would rub some the wrong way.” She adds that it’s a question with “constitutional implications.”