Street Art and Copyright Protection

Familiar with the Magic City? Then, you have likely become acquainted with the hundreds of droopy eyes that keep watch over Wynwood at NW 27th Street. For the past decade, they have gazed down I-95 traffic outside of the Marguiled Collection, embedding themselves into Miami’s identity.[1] Who would have thought that this Miami cultural icon would take such a forefront role in what could be a landmark case for artist’s rights.

A BRILLIANT EYE

AholSniffsGlue, aka David Anasagasti, is a prominent street artist in Miami. Famous for his droopy eyeballs spanning across the 305, Anasagasti has become quite the Miami celebrity. He has been represented by the infamous Gregg Shienbaum – prominent Miami art dealer and gallery owner – and has been named the Best Street Artist of 2014 by the Miami New Times.[2]

Likewise, Anasagasti has remained a featured artist in the Wynwood Art District. For those of you who are unfamiliar with Wynwood, it has become somewhat of a world-renowned outdoor museum, housing collections of murals created by local and sometimes international artists. Over the years, it has attracted hundreds of photographers and filmmakers to shoot in the area, all of whom understand the unspoken etiquette – you ask for permission and always credit the creators of the murals with a licensing fee. Clearly, American Eagle missed this memo on common courtesy, and dug themselves into a gaping whole.[3]

Last week, Anasagasti filed suit in the U.S. District Court of New York against American Eagle Outfitters for “blatant, unlawful, and pervasive infringement” [Figure 2]. Anasagasti claims that the Pittsburgh-based clothing company ripped off his art without giving any attribution or compensation for use of his work as part of its global ad campaign. He seeks infringement-related profits, an injunction barring any further use of his artwork, and actual damages.[4]

AMERICAN EAGLE, BULLY

At this point, you may think that American Eagle can shoot its campaigns wherever it wants. So what if it gives us a peak of Anasagasti’s work? It’s the artist’s fault for making artwork in a public place. Well… AEO’s use of the Anasagasti’s work is quite egregious when you dig deeper into the allegations set forth in the lawsuit.

To provide a little background, American Eagle Outfitters is a corporation with more than 1,000 stores in the US and 15 in other countries. They distribute their merchandise to over 81 countries, earning more than $3 billion dollars in 2013. [5] AEO is far from a little fish in the market.

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BRITTANY ELIAS
Email: Belias@KHSLaw.com
Phone: (310) 551 – 0600
Brittany is a 2L at Loyola Law School, Los Angeles with a focus on Entertainment and Intellectual Property Law. At KHS, she works as both a Law Clerk and Marketing Director.
Brittany wrote this article originally for The Dotted Line Reporter where she works as Managing Writer.

Earlier this year, American Eagle sought a refreshing new image for their spring 2014 campaign. They wanted an urban-focused campaign to market the collection and set up a big budget production in the Wynwood Art District. They shot photographs of models in front of two Anasagasti murals. As you can see in Figure 3, American Eagle pushed the line even further, posing one of the models affront Anasagasti’s Ocean Grown, with a can of blue spray paint; falsely implying that the model was the creator of the artwork. As discussed in the suit, not only did AEO strip Anasagasti of his rights to attribution but implied that the artist was a “young, clean-cut and apparently Caucasian model” when “in fact, Mr. Anasagasti is bearded, heavily-tattooed, and Cuban-American.”[6]

The lawsuit alleges that the Anasagasti murals were utilized “at the heart of the efforts to promote [American Eagle] products and shape its brand’s identity.” It’s hard to deny these allegations when the infringing photographs appear on the AEO websites, social media platforms, and print advertisements, including billboards and in-store displays. The infringing works stretched across United States cities and crossed international borders to Colombia, Panama and Japan. AEO seems to have structured Anasagasti’s work as its international and domestic branding tool.[7]

Unfortunately, the debauchery didn’t end there. During the opening of the AEO store in Medellín Colombia, AEO hired local street artists to recreate one of Anasagasti’s eyeball murals in an indoor mall, tagged with a large AEO logo across it. [8] At this point you must be shaking your head [Figure 4]. You really can’t make infringement any more obvious than directly recreating the work of another artist. Shame on American Eagle.

WHERE WILL THIS LAWSUIT TAKE US?

Despite AEO’s seemingly blatant infringement of Anasagasti’s masterpieces, there are many facts of the case that could pose potential hurdles for Anasagasti and his counsel. The court will likely need to determine whether AEO has an entitlement to a fair use defense and whether the direct recreation of Anasagasti’s work in Colombia has an effect on Anasagasti’s U.S. market presence. Either way, this case will play an important role in defining the rights of street artists like Anasagasti. The subject of graffiti art and artist entitlements to intellectual property protection has become a central focus of debate in both artist communities and the art law industry. Hopefully this case can shed some clarity and provide focus moving forward.

Read the original article on The Dotted Line Reporter.

Main Photo: AholSniffsGlue in front of one of his signature “eyeball” paintings, which he claims was used “without credit or compensation” in an American Eagle ad campaign. Photo by Daniel de las Casas for Tropicult


 

[1] Carlos Suarez De Jesus, Miami Artist AholSniffsGlue Sues American Eagle Outfitters for Intellectual Property Infringement, Miami New Times (July 28, 2014), available here

[2] Benjamin Shapiro and Jonathan Smith, Did American Eagle Just Rip Off a Miami Street Artist?, Vice (July 29, 2014), available here

[3] Carlos Suarez De Jesus.

[4] Shaprio.

[5] Id.

[6] Id.

[7] Id.

[8] Id.