Intellectual Property

H&M’s Legal And Public Relations Dumpster Fire

Let’s see if H&M 'acts differently' the next time it is caught exploiting an artist’s work without consent.

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(Photo by Joe Raedle/Getty Images)

One would be hard-pressed to recall a company having a worse quarter than just did H&M, the bazillion-dollar international mega-retailer that can’t seem to stay out of its own way on the legal and PR fronts.

It started back in December of 2017, when a Los Angeles jury unanimously found that the company had willfully infringed a Los Angeles designer’s copyrights in its fabric artwork by selling clothing bearing a knock-off version of the artwork. (Full disclosure: I was the lead attorney on this case.) Before trial, in an attempt to settle the case and allow the parties to avoid trial, we reached out to H&M and offered to settle the case on behalf of the artist for $790,000.00. H&M scoffed at the offer, and responded by proposing a $0.00 payment to the artist. So, a trial was held and the jury returned a verdict against H&M in the amount of $846,720.00. This would prove to be just the first of a number of monumental missteps by the company.

The very next month, H&M launched a marketing campaign that was so idiotic and offensive that it left the public stunned and at least one musician who was collaborating with the company severed that relationship and denounced the company. The press pilloried H&M for the ad, noting it was not an isolated issue for the company.

Later that month, a Los Angeles judge rejected H&M’s attempt to dismiss a case brought against it by electronic music duo Classixx. H&M had sold “Classixx”-branded garments at its stores around the world and, when called to account for this name-snatching by Classixx’s attorney (another disclosure: I am also the attorney for the artist in this case), H&M’s classy response was to mock the group as “relatively unknown” and unworthy of protecting its name. This was despite reports that H&M itself was known to play Classixx music in its stores. The judge rejected H&M’s challenge and ordered the company to proceed to trial.

After losing a jury trial to one artist, having its challenge to another’s case rejected, and being found liable, for good reason, in the court of public opinion for the shameful marketing campaign — all of which happened, incredibly, over the course of just a scant few months — you would think that H&M’s legal and marketing team would be taking every single possible precaution to avoid stepping in it again. You would be wrong, though.

H&M’s pattern of poor judgment and disrespect for artists’ rights crescendoed last week when H&M filed a federal complaint for declaratory relief against street artist Revok in the case styled H&M Hennes & Mauritz GBC AB et al v. Williams, NYED-1-18-cv-01490. Revok had had the temerity to object to H&M exploiting without his consent one of his street art pieces in a marketing campaign. Instead of acting reasonably and working out a resolution with Revok, H&M decided it wise to instead run to court and attempt to run up the costs on an independent artist while seeking an order that Revok had no legal right to stop H&M from using his artwork. H&M alleged in its pleadings that “[b]y virtue of Defendant’s commission of illegal acts in connection with the Graffiti, including criminal trespass and vandalism to New York City property, he does not own or hold any valid or enforceable copyright rights in the Graffiti.” H&M was arguing, at base, that artwork created as an act of “vandalism” was unworthy of copyright. It requested that the court find that Revok’s artwork was not protected and that H&M could exploit it in any way it saw fit, even if Revok objected. Oh, and H&M also demanded that Revok be ordered to pay H&M’s attorneys’ fees for having the gall to claim rights in his work.

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Nothing in the Copyright Act or case law supports H&M’s assertion in the least, as vandalism and trespass, criminal or otherwise, do not appear within the Act’s language. But, H&M, caught exploiting another artist’s work without consent, showed again the contempt and arrogance that had come to define the company in its dealings with the creative community.

Setting aside the spurious legal argument underpinning its claim, it is hard to believe that it did not occur to H&M that perhaps it should not be picking a fight with a group of artists who are not shy about expressing themselves and not shy about perhaps engaging in a little bit of unauthorized aesthetic upgrading. And the irony of H&M filing this case in the home of street art, Brooklyn, of all places, was apparently irony of which H&M was not cognizant.

As you might imagine, H&M’s attempt to use the courts to marginalize street art and strip its practitioners of any and all rights in their work did not go over all that well. The street artists waged a social media campaign against H&M that was replete with H&M tombstones, H&M cross-outs, and other memes that expressed a particular and unexpurgated displeasure with H&M’s way of doing business. A few H&M retail stores may also have received new aerosol additions to their facades. In the end, the campaign was so intense and one-sided and overwhelmingly negative that H&M had no choice but to reverse course and admit defeat.

The complaint against Revok had been filed on March 9, 2018. Just one week later, as the social media firestorm reached critical mass, H&M attorney Darren Saunders filed a dismissal of the case. While I haven’t reviewed all of the relevant jurisprudence, it is hard to imagine a retribution and reversal cycle more swift than this one.

H&M issued a mea culpa around the time of the dismissal, stating that “H&M respects the creativity and uniqueness of artists, no matter the medium. We should have acted differently in our approach to this matter.”

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H&M is far from able to utter the first clause of the above statement with anything resembling a straight countenance. Here, it had employed the very misguided and condescending strategy of rebuffing an artist’s attempt to reach a resolution and then arguing in a court of law that street art is legally inferior to other forms of artwork and, as, as a rule, should be denied copyright protection. Only after the massive public outcry did it admit it “should have acted differently.” And, while that is a very nice sentiment, I suppose, let’s see if H&M “acts differently” the next time it is caught exploiting an artist’s work without consent. And, if history is our guide, there will be a next time, and it will likely be very, very soon.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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