Another Graffiti copyright claim against a major brand – Robbins v Oakley

Another Graffiti copyright claim against a major brand – Robbins v Oakley

In American law schools, intellectual property is typically mentioned briefly in an introductory business law class.  A single days class might be dedicated to intellectual property as whole.  If students are lucky the professor may dedicate an entire class to trademarks and briefly mention patent and copyright law.  For this reason attorneys that do not specialize in intellectual property frequently confuse the distinct property right concepts which are embodied in patent law, copyright law and trademark law.

In a prior blog post we discussed how major consumer brands and retailers, in an effort to market to the younger generation, are including graffiti in their marketing campaigns.  The motivation to use graffiti in marketing campaigns in a financial one, the brand owner hopes to present their product to the public as edgy and cool to drive sales. Graffiti artists, like any other artist, take their art seriously and do not like when someone else attempts to co-opt their art.   Some brand owners respect the graffiti artists position and try to negotiate a license to use the graffiti commercially, other brand owners do not.  Whether the brand owner get a license to use the artist’s graffiti or not depends on a number of different factors including the hubris of the two parties.  Some graffiti artists will never license their work for commercial purposes because they view it as selling out.  Some brand owners don’t think that they can or will be sued by the graffiti artist.

It is prudent for a brand owner to not use any type of art on their products or in marketing material, unless the brand owner can secure a license from the artist.   Graffiti may have a social stigma which would lead people to believe that it is not protected by copyright law, but there is nothing in the law to support that belief.  Copyright law protects original works of authorship including artistic works which are fixed in a tangible medium.

An argument can be made that graffiti is not original, it is just shapes and lines, so it cannot be copyrighted.  That argument does not stand up to scrutiny.  The originality requirement of copyright law has been used to exclude things such as telephone books Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), and replicas of art which have passed into the public domain Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (1999).  This argument also ignores a whole genre of art, abstract art, which few people would argue is excluded from copyright protection

Copyright law in the United States does not impose a standard of art being critically acclaimed to be granted protection.  When the graffiti artist applies paint to a wall, the finished art is granted copyright protection.

A case which illustrates a brand owner which used graffiti for marketing purposes, without a license, and is now being sued by the graffiti artist is Robbins et al v. Oakley, Inc. et al, 2:18-cv-05116 (2018).   In 2015 Donald “KEPTIONE” Robbins and Noah “DJ RAKUS” Daar created a mural in San Francisco as part of an art project called Meeting of Styles.  Oakley reproduced the mural in their retail stores and product catalogs with out getting a license.  Robbins sued for copyright infringement on Friday June 9th 2018.

It is still early in the case, Oakley will have an opportunity to answer the complaint.  It will be interesting to see what defenses Oakley will attempt to assert.

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