Brooklyn Lawsuit Asks if Law Protects Graffiti Painted Illegally in a Park

NEW YORK — When it comes to casework, the U.S. District Court for the Eastern District of New York has always attracted matters in a handful of specific legal subjects. It has traditionally been — and largely still remains — the government’s court of choice for going after mobsters. More recently, it has hosted numerous terrorism cases, prosecuting more defendants from ISIS than any other district in the country.

But in the past few months, the Brooklyn-based court seems to have developed a new and unusual expertise. It has become something of a hotbed for graffiti litigation.

In November, for example, jurors at a landmark trial in the gleaming building on Cadman Plaza East decided that graffiti was of sufficient stature to be legally protected, resulting last month in a whopping $6.7 million judgment for several artists who once displayed their work at the now-shuttered 5Pointz complex in Long Island City, Queens.

Just last week, another graffiti case landed in the courthouse. This one, while similar in tone, will explore a different question: Does a mural painted illegally in a public park in Williamsburg deserve the safeguards of federal copyright law?

The latest dispute began this fall when the clothing company H&M was looking for a place to hold a fashion shoot and found what seemed like a perfectly gritty — but not actually dangerous — location: a graffitied handball court in the William Sheridan Playground in the heart of one of Brooklyn’s hipster meccas.

On Halloween, a production firm that H&M had hired wrote a letter to the city’s parks department asking if it needed to pay royalties to use the graffiti in an advertising video. That same day, a department official wrote back, saying that the city had not sanctioned the mural (“This graffiti should NOT have been on the handball wall”) and admitting she had no idea who painted it.

Taking this as tacit permission, H&M shot footage of a model in its new line of apparel using the graffiti as a backdrop. And this being the internet age, the artist, Jason Williams, saw it within months.

In early January, Williams, who lives in California and uses the tagging name Revok, had his lawyer, Jeff Gluck, send H&M a cease-and-desist letter. The letter claimed that the company had availed itself of Williams’ work without approval and threatened legal action in the absence of “an amicable settlement.”

There was no settlement — amicable or otherwise — and on Jan. 26, H&M’s lawyers wrote to Gluck explaining they had done due diligence and now felt that the mural was not only “unauthorized,” but also “constituted vandalism.” H&M, the lawyers said, no longer needed Williams’ permission, seeing, as they put it, that “his graffiti was created through criminal conduct.” Last Friday, the company filed suit asking a judge to declare that Williams had no claims on his own piece of art and to let it use the mural free of charge.

This is not the first time that Williams has been in court fighting a fashion label over the rights to his creations. In 2014, he and two other graffiti artists sued the clothier Roberto Cavalli, accusing it of having stolen their designs for a line of backpacks, shoes and handbags. That case — in California — was settled out of court for undisclosed terms.

The current case is likely revolve around a slice of federal law — 17 U.S. Code Section 102(a) — that grants copyrights to “original works of authorship fixed in any tangible medium of expression.” While H&M’s lawyers did not immediately offer comment on the case, they have argued in court papers that such protections do not extend to illegal art.

Even Gluck, who also handled Williams’ California suit, admits that the new suit will venture into unsettled legal territory. While he said he disagreed with H&M, courts have not conclusively decided whether unsanctioned graffiti falls under the copyright law.

But Gluck promised nonetheless to raise an army in his battle to defend Williams.

“My firm is mobilizing a network of litigators, law professors, and legal scholars who will devote time to challenging the merits of H&M’s lawsuit,” he wrote in an email this week. “Essentially what H&M is doing here is asking the court to declare that any and all unsanctioned or illegal art should be utterly devoid of copyright protection. It really is an assault on artists’ rights.”