Some of the most innovative artists in the world do their work in public spaces. They prefer being street artists (sometimes referred to as graffiti artists) to pursing a more lucrative career in commercial art. Because they create and display their art in public places, does that mean that they don’t have the legal right to prevent it from being used without their permission — particularly if the art was created illegally in a place where they didn’t get permission from the appropriate government entity or property owner?

That has been a question in recent years as street artists have fought back against retailers and other companies that have used their art without permission or payment. However, copyright law doesn’t address art that’s created illegally.

One street artist threatened to take the retailer H&M to court after they used his work from a Brooklyn playground in a promotional video on its website The company in turned sued him in federal court, claiming that he was guilty of “illegal acts in connection with the graffiti, including criminal trespass and vandalism to New York City property.” Therefore, H&M argued, his work had no copyright protection.

Within a week after the lawsuit was filed, H&M withdrew it. In their statement, the Swedish-owned company said, “We should have acted differently in our approach to this matter. It was never our intention to set a precedent concerning public art or to influence the debate on the legality of street art.”

The company didn’t say what caused such a fast change of heart. However, large companies usually don’t want to be portrayed as using their money and power against street artists. That’s one reason that these cases generally are settled privately.

As street art gains greater respect and prestige as a legitimate form of art, the companies who seek to use it to help them look avant garde might benefit from recognizing the rights of the artists to be compensated for their work and to have a say in how it’s used. Florida attorneys who handle intellectual property cases can provide valuable guidance to both artists and those seeking to use their art.

Source: WWD, “WWD Law Review: H&M, Others Find Graffiti Is Art After All,” Julie Zerbo, accessed April 20, 2018