The Art of Performance is a monthly column written by Dave Mann, an editor and award-winning arts journalist.
In case you missed the headlines or the social media activity, Swedish multinational clothing-retail company H&M recently took American graffiti writer Revok to court after using one of his works in a campaign without his knowledge or consent.
The campaign, which featured a model doing backflips and other unnecessary sporty actions, was for their ‘New Routine’ sportswear line. The problem is, they made use of one of Revok’s artworks in the images – a black linework piece he painted on a handball court in Brooklyn. Revok saw the advert circulating online and slapped them with a cease and desist letter. H&M hit back, basically saying that, no, they would neither cease nor desist.
Their main argument essentially stated that because the work was actioned out illegally, Revok had no right to assert his copyright to it. Things then got messy for H&M, with graffiti writers, artists and supporters calling for nationwide boycotts of the brand. There were also a few cases of H&M storefronts receiving vigilante makeovers courtesy of a fat cap and a spray can. Ultimately, H&M put out an apology in the same vein as the recent apology for their racist kids’ hoodie images (yup, they’re not doing the best work) and the case was dropped.
So why should you care about a short-lived court case from America? Cases like this can often set global precedents for future cases. Brands, property developers, and marketers have been using the works of artists in their campaigns, ads, and brand activations without credit or remuneration for ages. Seeing a retail giant like H&M backing down from a single artist can be a great thing. As with the H&M vs Revok case, it revealed that not only can artists stand up to corporate bullies, but that the work they create is theirs alone, whether or not it was created illegally.
Before H&M backed down, South African artists and graffiti writers such as Rasty, Falko1, Faith47 and more were joining the call to boycott the brand. Johannesburg graffiti store and gallery Grayscale even posted a fairly dramatic video of an H&M shopping bag filled with empty spray cans being set alight.
Brands should do their research – approach the artist, ask for permission, and enter into a licensing agreement
They have a right to be angry. Similar cases of brands messing graffiti writers around have taken place here in SA, often without any further action being taken against the brands. One of the main problems is likely due to the fact that brands simply don’t take the time to research the medium, and hope only to cash in on the ‘edgy-ness’ of graffiti.
In 2010 for example, when the Soccer World Cup descended on South Africa (and, ironically, Cape Town began its militant anti-graffiti campaign) a series of zebra sculptures popped up around town. There were 33 of them, each one by a different artist. The campaign was the result of The World for All Foundation contracting artists for their ‘Not All Is Black And White’ initiative. One of the artists was Cape Town graffiti writer Toe – an artist well-known for his work across Cape Town and beyond. Artists were asked to apply their unique style and concept to the sculptures and so Toe did what most graffiti writers would do – he wrote his name. The result was a black-and-white zebra with ‘TOE’ as well as the artist’s crew name ‘40HK’ written on the side of it. A few weeks after the zebras went public and were placed at strategic points throughout the city, the council ordered the cleaning off of Toe’s work, believing it to be vandalism. Bless them, they even painted inside the lines to get rid of the tags.
It’s not exactly the same thing as the H&M case, I know, but it does illustrate the sheer lack of knowledge and understanding of the medium of graffiti when it comes to brands and government initiatives looking to pick up an ‘urban’ edge.
A more recent case was the use of an artwork by Joburg-based graffiti writer Riot in an online video advert by a local cellular network and a bank. Riot, who’s been painting for around 16 years now, has work up all over the city. He also paints a fair amount of legal, commissioned works such as murals for stores, gyms and more. Around the time the ad was circulating, Riot made numerous attempts to contact the people involved, but received no responses. The ad continued to run and he never received any credit or compensation.
‘Illegal or not, that work was done by someone else,’ says Riot in relation to the ad. ‘[They should] have some respect and at least have the decency to ask. [Brands] get away with it until they get caught doing it.’
He explained that because artists here don’t receive as much attention in the media as artists based in North America, it’s often the case that artists don’t pursue the issue further, and that brands simply do what they like.
And look, this isn’t to say that relationships between advertising and graffiti artists can’t work. Artists like Nardstar, Page, Zesta, and more have been commissioned by numerous brands to create new work, and get paid for it. The issue is with the use of pre-existing work throughout the city, and the ways in which it’s used.
Graffiti writers, street artists, and all public artists, still have moral rights to their public work, which Stern says includes their right to be credited as the creator
Many artists (and SA citizens in general) often don’t know their way around things like copyright law. When you take into account the fact that many graffiti writers work anonymously, this can make things even more complicated.
Legalese, a Cape Town-based creative legal agency, specialises in accessible, affordable and understandable legal services for small businesses, creatives, and start-ups. Director of Legalese, Eitan Stern, explains that there’s a basic understanding in South African law which is that if you do something illegally, it cannot be protected. Intellectual property protection still applies to an artwork that has been created, however, and it doesn’t depend on the location or circumstances of its creation.
‘Copyright pertains to a work, not the context of a work,’ explains Stern. ‘So, although an image may be somewhere illegally, the image itself is not illegal – just its application. Therefore, an artist should still have copyright in the work.’
So, does this mean that artists should be remunerated for the use of their work in an advert? Stern goes on to explain that when it comes to the ‘public’ aspect of graffiti, the South African Copyright Act particularly makes an exception to copyright protection.
Artists like Nardstar, Page, Zesta, and more have been commissioned by numerous brands to create new work, and get paid for it. The issue is with the use of pre-existing work throughout the city, and the ways in which it’s used
‘The Copyright Act states that the copyright in an artistic work shall not be infringed by its reproduction or inclusion in a cinematograph film or a television broadcast or transmission in a diffusion service, if such work is permanently situated in a street, square or a similar public place,’ he explains. ‘The law has to find the balance between protecting artists, and allowing public spaces to be used by all, rather than let one artist determine what public space can be filmed or not by painting it. So, if a work is in a public space, South African copyright law doesn’t do much to protect it.’
Here’s the thing, though. Graffiti writers, street artists, and all public artists, still have moral rights to their public work, which Stern says includes their right to be credited as the creator.
‘Even though street artists don’t necessary have copyright protection in their work if they’re in a public space, most people think that they should. And so if a brand uses work without permission, although they’re possibly allowed to, it’s still viewed as highly exploitative,’ says Stern. ‘Brands should do their research – approach the artist, ask for permission, and enter into a licensing agreement.’
In Riot’s case, then, remuneration probably wasn’t likely to begin with, but credit was always due.
In a city like Johannesburg, where advertising and graffiti exist in equal measure, it’s likely we’ll see more examples of brands making use of public art without credit. Hopefully, as cases like H&M vs Revok continue to be taken seriously across the globe, we’ll see local brands attempting to collaborate more with artists in ways that see them being both credited and compensated for their work, illegal or not. Because as Riot puts it: ‘The level of work here in Africa is off the charts. We run with the best in the world.’ Let’s hope the suits start taking note.