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Can Graffiti be Protected by Copyright and Trademark Law?

As part of a trend, a recent lawsuit alleged that fashion designer Roberto Cavalli infringed the legal rights of artists Revok, Reyes and Steel when he used images from one of their graffiti murals on clothing and related goods under his Just Cavalli brand. Who owns the rights to graffiti images?

According to the lawsuit, the artists (who I’ll refer to as “RRS” for the sake of simplicity) have exhibited their works around the world, including in major museums, and “have never consented to lend their artwork to consumer products of any kind.” It appears clear that Cavalli took images from an RRS mural in San Francisco’s Mission District and reproduced them on clothing, bags, and in advertisements. Here is a photo of the mural:

Cavalli Evidence 3







Here are images of the products:

Cavalli Evidence 1





On some products, Cavalli is alleged to have added additional material or a signature to the image:

Cavalli Evidence 2






The artists clearly feel that not only are they suffering economic harm from not being compensated for their work, but that their reputations are at stake as well:

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

They sued Cavalli, along with several other vendors, including Nordstrom, Amazon, and Zappos, for copyright infringement, federal trademark unfair competition, state unfair competition, false designation of origin, and negligence.

The federal trademark claim is interesting – RRS doesn’t have a specific mark that Cavalli is alleged to have copied. Instead, they claim that the mural contains “signature elements” of their artwork, amounting to trade dress (a legal theory that I’ve covered before.) The lawsuit states:

Defendants’ use of the Plaintiffs’ Trade Dress is designed to create and does create the false and deceptive commercial impression that the Just Cavalli garments and accessories are associated with Plaintiffs.

However, the copyright claim is the core of this matter. Is graffiti subject to copyright protection? Speaking to The Atlantic, Philippa Loengard, assistant director of Columbia Law School’s Kernochan Center for Law, Media, and the Arts, stated, “Given what I know of the case, this is one of the most blatant examples of copyright infringement.” I have to agree.

The second section of the Copyright Act of 1976, 17 U.S.C. 102, states, in part:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:…pictorial, graphic, and sculptural works

17 U.S.C. 101 offers the following definition: “‘Pictorial, graphic, and sculptural works’ include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.”

I can’t see any way to interpret that language to mean that graffiti is not included in the definition of pictorial, graphic, and sculptural works. Nowhere does it state that, in order for copyright protection to apply, the work can’t be on the side of a building. It’s not even a requirement that the work be legal to create. The works of RRS are protected by copyright.

Cavalli hasn’t filed any response in court, but a spokesman did tell New York Magazine that the allegations “have no basis in fact and are incorrect.” We’ll see what evidence he produces to back that up.

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