Did American Eagle Just Rip Off a Miami Street Artist?

AholSniffsGlue in front of one of his signature "eyeball" paintings, which he claims was used "without credit or compensation" in an American Eagle ad campaign. Photo by Daniel de las Casas for Tropicult

Some old Greek guy once said that the law is reason, free from passion. If that old chestnut held up under scrutiny there'd be a lot fewer pissed-off humans hand-pounding license plates in our sprawling prison-industrial complex. This contradiction inspired us to repurpose an old Noisey column, Ask a Lawyer, to give us the opportunity to hit up one of our lawyer buddies and get him to drop the gavel on the weirdest legal issues of our stupid time. He'd only agree to speak with us anonymously, because lawyers are pussies. Enjoy!

On the whole, so-called street artists are pretty low on the human tolerability index—a step above “rollerbladers” or “meth dealers,” perhaps—but this week, we were surprised to find ourselves siding with one of these scrappy little vandals. Yesterday, the Miami New Times reported that street artist AholSniffsGlue (real name: David Anasagasti) filed a lawsuit against American Eagle Outfitters for “blatant, unlawful, and pervasive infringement.”

Anasagasti claims that the Pittsburgh-based clothing and accessories company, which caters to middle-income WASPs who like their cargo shorts pre-frayed, ripped off his art without credit or compensation as part of a global ad campaign. He’s seeking infringement-related profits, an injunction barring further use of the infringed pieces, and actual damages. But does he have a case?

Let’s take a look at the parties concerned. The plaintiff, Anasagasti, is a successful graffiti artist who’s become something of a celebrity in the street art scene for painting funny little droopy eyeballs all over town. In fact, they’ve become his signature motif, and you can’t miss them when you’re driving down I-95 past the Margulies Collection. He’s been represented by Gregg Shienbaum, a successful art dealer and the owner of a handful of galleries around Miami, for more than two years, and is a featured artist in the Wynwood Art District. Anasagasti was also named Best Street Artist of 2014 by the Miami New Times.

If you live outside of the 305 you might not be familiar with his work, but it looks like this:

Image courtesy Flickr user Dogslobber

The defendant, American Eagle Outfitters, is a corporation that has more than 1,000 stores in the US and at least 15 other countries. They ship products to consumers in over 81 countries through e-commerce sites, and, according to the lawsuit, raked in more than $3 billion dollars in 2013.

Earlier this year, when American Eagle was looking for the perfect, urban-tinged imagery to market their 2014 spring catalog, they set up a big-budget production in the Wynwood Art District and shot photographs of models in front of two of Anasagasti’s murals. American Eagle then used Anasagasti’s work, according to the lawsuit, “at the heart of its efforts to promote its products and shape its brand identity. The infringed works appeared on AEO websites, social media, billboards, advertisements, and in-store displays. The infringed works appeared in cities across the United States, as well as—insamuch as Mr. Anasagasti has been able to identify—in Colombia, Panama, and Japan.”

Here's an image from their online ad campaign:

Not only did American Eagle not credit or compensate Anasagasti for the use of his work, they posed one of the models with a can of blue spray paint, falsely implying that this “young, clean-cut and apparently Caucasian model was the creator of ‘Ocean Grown.’” (The lawsuit goes on to clarify that, “in fact, Mr. Anasagasti is bearded, heavily-tattooed, and Cuban-American.”)

Here is an image from their in-store campaign:

Then, during an opening in Medellín, Colombia, American Eagle allegedly hired local street artists to recreate one of Anasagasti’s eyeball murals in an indoor mall, complete with a big fat American Eagle logo plastered across it:

And here are the three graffiti artists posing in Medellín with Anasagasti's art:

On July 23, Anasagasti filed a suit in New York City in what might end up being a landmark case for artists’ rights. But what are his chances of winning? His murals are located in public places, and there’s a reasonable expectation that your work could end up being filmed or photographed if it's in a highly visible area. It’s not like it’s in a gallery or something fancy.

American Eagle didn’t immediately respond to our request for comment, so we asked our anonymous lawyer to weigh in.

VICE: The images used in the American Eagle campaign were taken in very public places—what sort of protection can Anasagasti expect from the court?
Anonymous Lawyer: Even if an original piece of art appears in public, copyright law still grants it protection. Copyright law grants a limited monopoly to the creators of art so long as the work is original and so long as it’s fixed in a tangible medium (i.e., paint on a wall). AholSniffsGlue’s work rises to the level of copyright protection.

OK. Also, in the photos, it’s sort of unclear whether the models were actually standing in front of the ads or they were photoshopped in. Does that matter, and will it be taken into consideration?
Not necessarily. If the defendant asserts a fair-use defense, it may try to claim that its use was somehow transformative because the models are placed in front of the art. In other words, the defendant could claim that its use of the original artwork is protected under fair-use doctrine because the defendant changed the original by placing a model in front of the artwork. It probably would not make a big difference as to whether the model was photoshopped or whether the model was actually standing there, because the degree to which a human image actually transforms the original artwork by adding meaning or original aesthetics is the central inquiry. In this case, it seems as though the artwork in the photographs is very similar, if not identical, to Anasagasti's artwork. In some copyright-infringement cases, the defendant may try to claim that it didn't have access to the original work, and any similarity is therefore random and inadvertent. However, American Eagle will most likely have a very difficult time claiming that they somehow didn't have access to the artwork. If American Eagle tried to claim that they independently created the artwork without access to the original, proof that the models were actually standing in front of the art would weigh in favor of Anasagasti by proving that American Eagle in fact had direct access to his art.

What about the fact that Anasagasti is an established artist with a signature style—will that bolster his case?
Not necessarily. The defendant’s commercials contain identical or nearly identical versions of Anasagasti’s work. Whether or not the two works are substantially similar is pivotal in copyright infringement analysis, rather than whether or not Anasagasti’s style is popular. Sometimes in copyright infringement suits the Defendant may contest that it had access to the plaintiff’s work, and the popularity of the plaintiff’s work can be used to argue that the defendant must have known about the plaintiff’s work. That does not seem to be an issue in this case, however.

OK, but what if a truck covered in graffiti happened to drive by an American Eagle photoshoot—could the artist sue the company then?
Provided that the amount and substantiality was significant enough as to not qualify for a fair-use exception, that hypothetical artist could still have a case. It would be the responsibility of American Eagle to clear the original intellectual property that was embodied in the advertisement. If the truck was insubstantial within the overall advertisement, it would be possible for the defendant to argue that it was a de minimis use that doesn’t rise to the level of infringement.

But they didn’t just use Anasagasti’s images—they allegedly recreated his art outside a store in Colombia. Will that strengthen his case? Or does the fact that it happened in another country make it irrelevant?
If Anasagasti could argue that some injury took place in the US from this conduct in Colombia, he could theoretically add it to his claims. The determining factor would be whether the reproductions of the art were published in the United States. If so, the injury would arguably be in the US and Anasagasti could argue that the proper jurisdiction for that injury is the United States. Otherwise, he may need to bring suit in the local jurisdiction.

What would American Eagle have to do with the artwork in order for a judge to consider it a new work of art, or "transformative"? 
As part of a fair-use analysis, the transformative nature of the defendant’s use is considered. To be truly transformative, a defendant must create new understandings, new aesthetics, and new meaning. Simply putting a model in front of an unaltered piece of art does not seem to transform Anasagasti's work, although what courts deem to be transformative varies case by case. Additionally, the fair-use doctrine is a test that balances numerous factors (purpose and character of the use, amount and substantiality of the use, the nature of the copyrighted work, and the effect on the market for the original), so transformation alone usually does not singularly dictate whether a defendant benefits from the fair-use defense.

A few years ago, Michael Sieben, who was at the time a VICE columnist, wondered whether or not Target ripped him off in a similar way. What do you think the mentality inside these corporate offices is when they decide to rip off small artists? Do you think they just hope the artist never notices, or do they have so much confidence in their lawyers that they think any lawsuit brought against them will be squashed?
The specific intent of these corporations is difficult to assess, as I’m sure every situation has a slightly different motivation. Obviously, less creative development is needed if you piggyback on existing artistic works, so I can see how that could be attractive to a corporation that is looking to maximize quick profit and minimize the necessary man-hours. It’s important to note that our copyright system grants creators a limited monopoly over their original work, not an absolute monopoly. The right for an artist to maintain control over his or her work is counterbalanced by the interest of the public having access to creative works that benefit society. That’s the logic behind the fair-use balancing test. There are conceivable situations where a corporation could use an existing artistic work in a way that fits within the fair-use defense; either the use is particularly transformative, or the amount and substantiality that is used is so small that it doesn’t infringe upon the original work. The free flow of ideas is something that our system wants to promote, provided that corporations are not able to use the heart of an existing work without compensating the creator.

In your professional opinion, do you think that Anasagasti is going to win this suit?
I think there is a significant chance that the court could find that American Eagle's activities constitute copyright infringement.

Our lawyer friend wanted us to tell you that these articles are for informational purposes only and do not constitute legal advice. They should also in no way be taken as an indication of future results and are not intended to create (and the receipt does not constitute) an attorney-client relationship. Whatever that means.

Follow Jonathan and Ben on Twitter.