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Contrary to what many think, street art may be copyrightable and use of such works generally requires the author’s consent. If you use street art without the artist knowing, especially for regular commercial purposes such as the production of clothes or textiles, the artist may well be entitled to raise various claims, and may in particular sue for damages or for withdrawal of the contested product from the market.
With street art growing in popularity, the works of various street artists, which used to be limited mainly to walls in large cities, have been increasingly present also on our clothes. Street artists, such as the one nicknamed “Banksy”, offer specific aesthetic impressions while at the same time often addressing popular topics of political or social nature. Clothes manufacturers are well aware that street art not only increases the visual appeal of clothes (e.g. T-shirts), but can also help express the owner’s views and as such sits perfectly well with the current trend of employing unique graphics or slogans on T-shirts to manifest and express the wearer’s personality.
Importantly, clothes manufacturers are even more eager to use such art because, in popular opinion, no consent of the artist is required and no monies need to be paid to him or her. However, this popular view should be revised, especially given the frequent disputes between street artists and manufacturers. The most famous of such disputes was between Joseph Tierney (street artis going by the nickname “Rime”) and Jeremy Scott (a designer for Moschino fashion house) and the artist won. Other suits by street artists hit Roberto Cavalli and the clothes manufacturer American Eagle Outfitters, to name a few.
When clothes manufacturers have used street art in their collections or advertising without seeking the artist’s consent (license), they usually claim that putting a work out in a public place means the artist intended it to be available to all without any restrictions. But this view is debatable under Polish copyright law.
First of all, the fact that an artist puts their work in a public place does not mean at all that the work is not copyrightable. Legal protection applies regardless of how the work is expressed, including whether it has been painted on canvass or on a building. Similarly, no importance attaches to whether the artist keeps the work in their workshop or, on the contrary, deliberately presents it to a wider audience by placing it in public city space. Secondly, if street art is subject to copyright protection, it can only be used with the artist’s consent and (usually) for an agreed consideration.
On the other hand, Polish copyright law does admit certain exceptions, expressly listing situations where the author’s permission is not required. Some wonder in the street art context if this perhaps may be the case of Article 33(1) of the Copyrights Act, which says that you can communicate to the public works which “are permanently exhibited on or in generally accessible roads, streets, squares or gardens.” While this law ostensibly appears to catch street art, it is actually rather unsuitable as a legal basis for exploiting this kind of works.
First of all, there are doubts if street art such as murals or graffiti can be considered to be “exhibited” (in the organisational sense) in general, and exhibited “permanently” in particular. Generally, this is guerrilla art that is displayed in cities without administrative consents and not for long as it exists mainly at the will of the affected property owners. Moreover, even if Article 33(1) is held to apply to street art, it does not necessarily justify its exploitation for commercial purposes. True, it does permit certain uses of otherwise copyrightable works, but this is on condition the uses are not against “legitimate interests” of the author or against his or her moral rights. Meanwhile, an artist who by definition contests and denies commercial exploitation of their works can be said to have their legitimate interests infringed by the very act of such commercial exploitation. Street art is populated by such artists, with the popular Banksy at the forefront.
Conclusions? Contrary to popular opinion, using street art would as a rule require the artist’s consent. If you use it without the artist knowing, including for regular commercial purposes such as the production of clothes or textiles, the artist may raise certain claims under copyright law. For example, he or she may claim damages, or use what probably is a more hurtful measure, i.e. demand that the infringing products be withdrawn from the market to cure the infringement. Claims of this kind have hit many clothes manufacturers, including the famous Moschino fashion house. The lesson to be learnt is that it is always advisable to know the law or, if in doubt, to consult your lawyer, in accordance with the Latin maxim “Morbum evitare quam curare facilius est” (“an ounce of prevention is worth a pound of cure”,
or a stitch in time saves nine).
You are encouraged to read all our texts devoted to the fashion industry in connection with the Fashion Fair (21-22. February 2018, Poznań).