In an ongoing case filed in California, two street artists, identified by their tags BATES and NEKST, are suing due to the unauthorized use of their tags on clothing sold by defendants. According to the complaint, this unauthorized use has detrimentally affected the artists’ reputations, leaving them seen as “corporate sellouts” who have sacrificed their “artistic independence, legacy, and credibility for a quick buck”.
In street art, the act of tagging one’s name holds a significant meaning, serving as an assertion of agency and identity, especially for marginalized groups. Hence, the inappropriate use of these tags by corporate entities can severely threaten the credibility of these artists.
Although conflicts between street artists and corporate giants are no novelty, this particular case places emphasis on the artists’ rights of publicity under California Civil Code Section 3344 and the related common law. Alongside asserting their trademark rights, the artists argue that their names and signatures were non-consensually utilized on commercial goods, with Guess? Inc. and Macy’s Inc. as named defendants in the suit.
The right of publicity developed out of privacy law as technology evolved in the late 19th century, granting individuals the power to control the commercial use of their image. One of the early instances of such a case was Roberson v. Rochester Folding Box, where a woman sued a flour company in 1902 for using her portrait without her consent.
While copyright protects original works in physical form and trademark law promotes fair competition by identifying product sources, publicity rights come into play when a creative work captures an identifiable individual’s likeness. As such, for fashion companies wishing to use art, particularly street art, on their products, the rights of publicity present yet another legal hurdle to clear.
Today, the law regarding the use of a person’s “likeness” or publicity rights varies widely across states. For instance, in New York, the law focuses on misuse of a person’s name, portrait, or picture and voice, while Indiana law extends special protection to “personalities” whose name, voice, signature etc., have commercial value.
Unfortunately, getting a copyright or trademark license from an artist may not be enough, especially if the art in question includes any recognizable individuals or names. Therefore, legal practitioners need to familiarize themselves with applicable laws and potentially seek further consent before using such artwork.
Moreover, apart from the legal requirements, the law’s public perception is equally essential. These rights of privacy and publicity are highly sensitive, as many people perceive them as closely related to fundamental human rights, as they exist within the “penumbra” of constitutional rights. Therefore, even if use of an individual’s likeness is technically legal, it may still generate adverse publicity if executed without consent.
The case, Patrick Griffin et al v. Guess? Inc., and its outcome will undoubtedly provide further reference for fashion brands intending on creatively collaborating with visual artists, including street artists, while further tracing the contours of the right of publicity.