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does copyright protection extend to illegally created works? A UK perspective

21 March 2018
H&M has publicly announced that it is dropping its lawsuit against the graffiti artist Jason 'REVOK' Williams, following a huge social media backlash.

The dispute began when H&M featured a piece of Williams’ artwork in an advertising campaign. Williams sent H&M a cease and desist letter, stating that the retail giant had infringed his copyright by using his artwork without permission. H&M responded by filing a lawsuit against Williams, claiming that the artwork had been illegally graffitied on property belonging to the New York City Department of Parks & Recreation, and that no compensation was due to the artist because the entitlement to copyright protection “does not extend to illegally created works”. Whilst the case is not proceeding, it does raise the interesting question of whether artwork created illegally should have the benefit of copyright protection. As yet, there has been no reported decision by the UK courts on whether such protection is available to works of graffiti.

There is no inherent reason why a piece of graffiti would not be capable of protection by copyright in the same way as any other artistic work, provided it satisfies the requirements of the legislation. Moreover, the UK courts have determined (most notably in the 2000 case of Hyde Park Residence v Yelland) that when deciding whether to refuse to enforce copyright for public policy reasons, they will only take into account the contents of the work itself. As a result, the purpose for which the artwork was produced and the process by which it was created is not relevant as to whether it can benefit from copyright protection. Therefore, it is likely that illegal graffiti can still be protected by copyright under English law.

Nevertheless, there are other factors to bear in mind when claiming ownership of copyright in a graffiti work when seeking to enforce such copyright. It is possible that a work may be considered 'damage', which may be a criminal offence under s.1 of the Criminal Damage Act 1971. Were that the case, in bringing a claim the artist would obviously need to confirm that they created the artwork, thereby opening themselves up to those potentially criminal sanctions, as well as a possible civil claim brought by the owner of the graffitied property. However, whilst it is clearly still possible to damage a building, it is no longer clear that all artwork on a building would be ‘damage’ to a building in the same way as it would in 1971, when the Criminal Damage Act was passed. Often such artwork is considered to have real value, and developers have even been known to keep certain walls in a redevelopment in order to preserve the artworks upon them.

With that said, if a building owner were notified of and complained about an artwork, and it was clear that the Criminal Damage Act 1971 was engaged, then it is arguable that the Proceeds of Crime Act 2002 might subsequently also be applied, requiring the artist to pay up any amount received via the copyright claim, however, even in those circumstances, there is nothing in the UK to suggest that the entitlement to copyright protection “does not extend to illegally created works”, as H&M initially claimed.

For the time being, it is not possible to say with certainty how the UK courts would have decided the case of H&M v Williams had it been brought in this jurisdiction. However, the growing acceptance of graffiti as a recognised art form, and the desire for brands to be associated with it, means that similar cases may arise in the not-too-distant future.

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