Art or Vandalism? H&M Graffiti Suit Could Have Big Implication for Ads (UPDATED)

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UPDATE: In a tweet on Thursday, H&M said it was withdrawing its suit against the artist Jason Williams.

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H&M is under social media fire for suing a street artist over the use of his work in a campaign, and the suit could have greater implications for advertising by paving the way to a decision on copyright protections for graffiti art.

In its "New Routine" advertising campaign for activewear, the fast-fashion retailer recently included the Brooklyn graffiti of Jason Williams, also known as Revok. After Williams sent H&M a cease-and-desist letter, H&M fired back with a suit against Williams. In the complaint, filed earlier this month, the Swedish retailer is asking the court to decide whether graffiti counts as artwork that can be protected under the constitution, or illegal vandalism.

"Plaintiffs seek a declaration that their use of images with the graffiti in the background, in connection with the H&M New Routine advertising campaign, does not constitute copyright infringement and that any claim by defendant therefore is barred under the defenses of illegality and/or unclean hands," read the lawsuit, which was filed in the Eastern District Court of New York. The suit alleges that Williams' threats to sue for infringement have "placed a cloud over H&M's rights to use in the future its New Routine advertising campaign." The work is currently accessible on H&M's website with both video and images of the Williamsburg, Brooklyn-located work.

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."

A spokeswoman for H&M, which has more than 4,100 global locations, did not return a call requesting further comment.

Williams' attorney, Jeff Gluck, says that the current generation will not tolerate H&M's actions.

"H&M sees value in using graffiti in their advertisements to draw in their target demographic and increase revenues, but they also appear to simultaneously seek to undermine and discredit graffiti and the culture via this legal action," he says. "That is the reason why so many people are upset."

On Thursday, several of Williams' supporters took to Twitter, calling for boycotts of the Swedish retail chain in the name of protection of local artists.

This is the second time H&M has come under fire in recent months. In early January, the brand posted an ad of a black child wearing a hoodie reading, "Coolest monkey in the jungle," and many accused the apparel company of racism. H&M was forced to close stores following violent protests in South Africa.

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