High fashion brand sued for using graffiti without permission. KULIG v. ALDO

High fashion brand sued for using graffiti without permission. KULIG v. ALDO

Copyright law protects artists from having their creations used without their permission.  Copyright law throughout the world is relatively standard because many nations have adopted treaties such as the Berne Convention and the World Intellectual Property Organization Copyright Treaty.   The laws each nation uses to implement these treaties vary slightly but the fundamental spirit of the laws are the same.

United States copyright law grants the creator of a new work of artistic expression a copyright to the work when it is fixed in a tangible medium.  This means that when a photographer takes a picture, an author writes a book or a painter creates a painting, the creator of the work is granted a copyright in the work.  A copyright can be registered in the United States to strength the rights associated with the copyright, but registration is not required for he copyright to be granted.  A copyright grants its owner the exclusive right to reproduce, distribute, display, perform transmit and create derivative works based on the original.  If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

Successful art resonates with an audience and generates strong emotions.  Many product manufacturers incorporate popular pieces art into product advertisements in an attempt to transfer some of that emotional response from the art to the products being advertised.  The hope is that consumers will view a popular piece of art next to a product and buy the product because they like the art.  This practice is common and many artists have profited by licensing their art for use in advertisements.  However, when art is used in advertising without the permission of the artist that can be copyright infringement.

A popular type of art used in product advertising is graffiti.  Graffiti can be unconventional and provocative, two qualities that advertisers want when they are trying to market products to younger consumers.  For whatever reason, advertisers think they can use graffiti in advertisements without getting permission from the artist.  Why advertisers think it isn’t necessary to get a license to use graffiti in an advertisement is a mystery.  Perhaps it is because graffiti is publicly displayed on the exterior of a building or because graffiti is considered counter culture it isn’t given the same respect as art hung inside a museum.  Whatever the reason, graffiti qualifies for copyright protection and reproducing graffiti in an advertisement without the copyright owner’s permission is copyright infringement.

An example of a copyright case involving graffiti used in advertising is CURTIS KULIG v. THE ALDO GROUP, INC., 19-cv-01181 (C.D.CA 2019). Plaintiff Curtis Kulig is a renowned artist, photographer, and illustrator.  In early 2015, Plaintiff created a mural for Smashbox Studios on an exterior wall of the company’s building in Culver City, California (the “Mural”), as shown in the image at the top of this article.  The Mural was well received by the art world and there was a significant amount of positive press coverage, making the Mural relatively famous quickly.

The defendant in this case is o produces shoes and handbags, and has estimated annual revenues of $2 billion. Aldo sells its goods online and through over 3,000 Aldo stores around the world, including more than 400 stores in the United States.  Without permission from the plaintiff , the defendant began an advertising campaign which featured pictures of models posing in front of the the Mural. The pictures were posted to the defendant’s social media accounts.

The plaintiff filed suit alleging that the defendant infringed the plaintiff’s copyright by reproducing the artwork in advertisements.

The defendant will be given an opportunity to respond to the complaint, but it is difficult to see what defenses will successfully excuse the defendants use of the Mural without permission. Getting a license from the plaintiff before using the Mural in an advertisement would have spared the defendant many headaches.

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