Can You Be Sued by Graffiti Artists for Painting Over Their Work?

A group of New York graffiti artists are suing a building owner for painting over their work.

Their work appeared on a Long Island building complex called “5Pointz,” which has since been demolished.

The artists (who use by street names such as Panic and Toofly) allege that the property owner and his company whitewashed their work “without giving [the artists] a fair opportunity to remove and preserve their work, or even the minimum notice required by law.”

They brought the suit under a little-known (and rarely used) clause of US copyright law called the Visual Artists Rights Act (VARA).

VARA protects the “moral rights” of artists. It includes:

• The right of attribution – the right of an artist to control when a work can be attributed to him or her
• The right of integrity – the right “to prevent any destruction of a work of recognized stature…” 

VARA defines a work of visual art as including “a painting,” and the 5Pointz plaintiffs are claiming that their work qualifies.

The complaint in the 5Pointz case is here. It seems doubtful whether the plaintiffs will prevail, as in a previous case a judge ruled that the graffiti was merely a tourist attraction rather than protected art.

Although the 5Pointz case focuses on the destruction of graffiti, other cases have focused on the misuse of graffiti art, as discussed below.

Using Street Art in Ads

In December, a Miami graffiti artist negotiated a settlement of his copyright infringement lawsuit against American Eagle Outfitters.

David Anasagasti, who uses the street name “Ahol Sniffs Glue,” had sued American Eagle in federal district court in New York for using his “droopy eyes” images on the company’s website, in social media, in store displays, and even on a New York City billboard.

American Eagle also hired artists to recreate one of Anasagasti’s murals for a store in Medellín, Colombia – adding their own eagle logo to it.

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Portrait of the Artist

Anasagasti is far from obscure. Under his street name, he was named the Best Street Artist in Miami for 2014.

According to the Miami New Times,

“AholSniffsGlue” is not only the funniest street artist name in town, but it also gets to the heart of the whole droopy-lidded genius of his best-known trademark.

The droopy eyes are considered the artist’s “calling card.”

American Eagle’s first known use of Anasagasti’s designs appears to have been when the company did a fashion photo shoot in the Wynwood Arts District of Miami, where walls are covered in street art commissioned from well-known artists.

In one of American Eagle’s ad campaigns, a “young, clean-cut and apparently-Caucasian” male model is standing in front of a droopy-eye mural with a can of spray paint.

Anasagasti is Cuban-American, bearded, and tattooed.

The Complaint

According to his complaint,

Mr. Anasagasti has never permitted his work to be used to advertise or sell commercial products… Given that he hails from the counter-culture world of underground street artists, Mr. Anasagasti’s reputation as an artist has been founded, in part, on a public perception that Mr. Anasagasti doesn’t ‘sell out’ to large corporate interests. Yet ironically, in today’s fashion marketplace, affiliation with artists bearing such ‘street credibility’ is highly sought-after by retail brands for the cultural cachet and access to the profitable youth demographic that it offers.

Anasagasti’s attorneys reportedly complained about the use of his work in May, but it was still being used in July when he sued.

The terms of the settlement were not revealed.

More Street Art Lawsuits

Several other recent lawsuits have also involved the appropriation of graffiti/street art:

• Director Terry Gilliam was sued over the use of a street art mural shown in his movie The Zero Theorem.
• Three graffiti artists accused designed Roberto Cavalli SpA of incorporating their mural into a range of clothing.

According to the complaint in the Cavalli lawsuit,

Nothing is more antithetical to the outsider “street cred” that is essential to graffiti artists (indeed, the Pasadena Museum of California Art exhibition was entitled Street Cred) than association with extravagant European chic, luxury, and glamour – of which Cavalli is the epitome. To anyone who recognises their work, Plaintiffs are now wide open to charges of ‘selling out’.

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Can I use street art in my ads?

As seen in the cases noted above, the unlicensed use of street art in commercial marketing can be risky. If the street artist can be identified, then permission (probably involving the payment of a licensing fee) should be arranged in advance. Of course, it may be difficult to identify the artist – but the artist (or the artist’s lawyer) may appear when the work is used commercially –and demand compensation.

If you want to know more about the use of street art and other third-party elements in advertising, contact a copyright or advertising lawyer.

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