There was an interesting article in the South African marketing industry publication Bizcommunity about street art. The article discussed how certain big brands have been taking street art (graffiti) and using it in their marketing and branding. And they’ve been doing this without seeking consent from the graffiti artists. So, what IP issues arise here?

According to the article, a street artist by the name of Jason “Revok” Williams recently got into a spat with the fashion brand H&M. Williams was upset because H&M had used street art, in the form of chevrons, that he had painted on a handball court in Brooklyn, New York as part of the branding and marketing material for the New Routine sportswear brand. Williams said that this amounted to copyright infringement. He also said that the association with the New Routine brand had caused him reputational damage. H&M’s response was that Williams was in no position to assert any rights because his artwork was illegal, in the sense that it had been painted on the side of buildings in contravention of the law. In law, this defence is sometimes referred to as the “unclean hands” defence.

What is interesting is that this corporate “theft” of street art is seemingly not uncommon. Williams previously sued the company behind the brand Roberto Cavalli for infringing copyright in one of his artworks (the matter was settled). Another street artist who goes by the name of Rime once sued the company behind the Moschino brand, who also raised the unclean hands defence. But why would a big brand owner want to make use of street art? One can only assume that it’s an attempt to get some “cred”, with the company thinking that there’s some advantage to be had in being linked with something as edgy as graffiti. However, these large corporates also often get these things wrong from a public relations point of view.

This is the statement that H&M eventually felt obliged to put out:

“H&M respects the creativity and uniqueness of artists no matter what the medium... it was never our intention to set a precedent concerning public art or influence the debate on the legality of street art...we are currently reaching out directly to the artist."

So, back to those unclean hands. It’s a very rare defence and, in the context of copyright, it basically boils down to the alleged infringer saying this to the claimant, “your rights to the work in which you claim copyright are tainted, so the law won’t allow you to enforce them.” The author of the article I’ve referred to, Enrico Bonadio, clearly doesn’t feel that the defence is appropriate in a case like this. It would, argues Bonadio, be akin to saying that someone who steals a pen and creates a beautiful work of art or literature with it cannot enforce the copyright in the work. Allowing such a defence would have the effect of making the misappropriation of the work legal, but not its creation.

The unclean hands defence was raised in a recent South African copyright case, one that enjoyed a great amount of media attention. This was the 2016 case of Moneyweb (Pty) Ltd v Media24 Limited. Many South African readers will remember the case where the online financial publication, Moneyweb, claimed that online news aggregator, Media24, had infringed its copyright in a number of articles.

The court held that of the seven articles in issue, only three enjoyed copyright (the other four were not original), and the copyright in only one those three had been infringed – that article had been reproduced almost word-for-word. The court found that the fact that there was a hyperlink to Moneyweb’s site meant that Media24 had acknowledged source and authorship. However Media24’s defence of “fair dealing” in relation to that one article failed because it had published its version of Moneyweb’s article with indecent haste, within a few hours of the original publication.

One of the other defences raised by Media24 was “unclean hands”, with the argument being that Moneyweb couldn’t enforce rights because it had itself copied its articles from other sources. In its court papers, Moneyweb responded to this claim by pointing out that unclean hands is a very unusual defence which has extremely serious consequences, so it should only succeed in the clearest of cases, for example where there has been dishonesty, fraud or bad faith. Unfortunately, it seems that the unclean hands defence was not pursued with much vigour and so the interesting issue of whether unclean hands may be raised as a defence in a copyright infringement claim remains to be resolved.