Outside the art community, street art is still widely unrecognized as a legitimate artform protected by the same laws that protect fine art and music. But several recent lawsuits and a threat of legal action by street artists suggest that may be changing.
On Wednesday, as first reported by Artnet, New York attorney Andrew Gerber sent a letter to McDonald’s on behalf of six Brooklyn artists—Don Rimx, Beau Stanton, Virus, NDA, Atomik, and Himbad—threatening imminent legal action against the fast food chain, claiming it featured the artists’ work in a new Dutch ad campaign without their permission.
McDonald’s teamed up with the Bushwick Collective, a group of New York City street artists, to create an artsy-yet-gritty ad campaign promoting its “New York Bagel Supreme” burger in the Netherlands.
The four-minute “McDonald’s Presents the Vibe of Bushwick” video highlights graffiti murals that have become synonymous with the Brooklyn neighborhood’s art scene, with Bushwick Collective founder Joe Ficalora serving as narrator and tour guide in the promo campaign.
But a number of clips in the video show works by street artists who aren’t affiliated with the Bushwick Collective and didn’t consent to participate in the campaign. In fact, they weren’t even asked.
“If you’re going to use our work to bolster your street cred, you should at least ask for permission,” NDA, one of the artists, told the Daily Beast.
The artists are pursuing legal action over copyright infringement, false endorsement, damages to their work and reputation, and profits from unauthorized use of their work. “I’m not interested in doing free work for a giant, multi-national corporation,” NDA added.
In his letter, Gerber demanded that the fast food chain pull the promotional video campaign and compensate the aggrieved artists for unlawful use of their works.
“In the past few years our firm has represented a number of artists in addressing use of public artworkv‘street art’—for commercial purposes without permission,” Gerber told The Daily Beast. “It’s copyright infringement, and it’s disappointing that we keep seeing it. The license fees that should be paid in these scenarios are critical for these artists.”
Gerber noted that street art has become a hot commodity from an advertising perspective, with brands using it to convey a certain vibe or aesthetic in marketing campaigns but failing to compensate muralists. According to Gerber, these companies know better yet continue to take advantage of street artists because they think they can get away with it—and often do.
“There’s a sense that street artists won’t know how to address these issues or know that they can enforce their rights against companies,” said Gerber, adding that companies are still responsible when they unwittingly use public artworks without artists’ permission. “The damage is done regardless of intent.”
Indeed, public perception is critical to shaping artists’ career trajectories, which makes young, emerging artists particularly scrupulous when it comes to brand association.
Many of the artists threatening to sue McDonald’s don’t want to be affiliated with the ad campaign’s (misleading, in their view) image of Bushwick as a poor neighborhood relatively untouched by gentrification. That image is particularly distasteful coming from a fast food chain that contributes to the neighborhood’s poverty, they argue, citing a dearth of supermarkets and access to nutritious food in Bushwick relative to other neighborhoods in New York City.
McDonald’s was also sued in October 2016 for copyright infringement by the estate of Dash Snow, the late street artist, for using his signature graffiti tag as décor for a McDonald’s restaurant in London. A California judge dismissed the lawsuit in January on the grounds of insufficient personal jurisdiction, since McDonald’s is headquartered in Delaware.
But a judge handed down a significant victory in March to another group of street artists engaged in a protracted legal battle against real estate developers who razed a Long Island City neighborhood known as 5 Pointz (alternately described as “the mecca for street art” and the “U.N. of graffiti”), replacing it with luxury high rises.
When the artists learned that developers were planning to construct condominiums over their graffiti mecca, they sued to protect their work in 2013—and their complaint was dismissed. The real estate developers proceeded to whitewash their murals months before demolition was scheduled to begin, and without giving the graffiti artists minimum notice required by law to attempt to protect their work.
In 2015, the artists filed another lawsuit claiming that their work was protected under the Visual Artists Rights Acts of 1990 (VARA), which grants visual artists the right to prevent destruction of a work of “recognized stature” that they created, even if they don’t technically own that work.
The developers countered that VARA doesn’t apply to the 5 Pointz case because even though the artists in question are well-known, the works that were destroyed were not of “recognized stature.” The judge disagreed: on March 31, he ruled that there was sufficient evidence for the 5 Pointz VARA case to go to trial.
Coming from a high-profile copyright lawyer like Gerber, the letter threatening legal action against McDonald’s is the latest sign that the debate over street artists’ rights is reaching a tipping point.
“It’s been an ongoing conversation and it’s really coming to a head,” said Beau Stanton, one of the artists whose work was featured in the McDonald’s promo without his consent. “The advertising industry has been very slow to accept that the artists maintain the rights to these images,” said Stanton, adding that he refers to himself—not coincidentally—as a muralist and a public artist rather than a street artist. “The term ‘street art’ is clearly a marketable thing right now, and the advertising world is utilizing it heavily in pitching to brands.”
Gerber declined to reveal compensation estimates but clarified that numbers will be negotiated with McDonald’s if the artists move forward with legal action. The Bushwick Collective has not been implicated by the aggrieved artists.
“From our perspective, the issue is with McDonald’s,” said Gerber. “We hope that [McDonald’s] does the right thing so that we can resolve this amicably, but we’re keeping all options open.”
McDonald's did not return a request for comment.