Six Street Artists Threaten McDonald’s with Copyright Infringement Lawsuit
BY ANNA LOUIE SUSSMAN
APR 19TH, 2017
In another chapter of 2017’s incredible streak of “multinational corporation tries to appeal to the kids; mayhem ensues” episodes, McDonald’s stands accused of copyright infringement and false endorsement for using the work of New York City graffiti artists in a promotional video entitled “McDonald’s Presents the Vibe of Bushwick NY.”
On Wednesday, lawyers representing six street artists sent a letter to the burger chain threatening legal action and seeking “compensation for damages to their work and reputation, as well as profits derived from McDonald’s unauthorized use of their artwork,” according to a statement released by their lawyer Andrew Gerber of Kushnirsky Gerber PLLC.
The burger chain hired six Bushwick-based street artists to paint its new bagel sandwich in public spaces around the Netherlands while being filmed, using that footage for an ad alongside the “Vibe” video. While the four-minute-long video focuses mostly on the hired artists, who are part of the Bushwick Collective group, work by many other street artists appears in the video without permission.
The six artists currently considering legal claims are Don Rimx, Beau Stanton, Virus, NDA, Atomik, and Himbad. Gerber said he has also been in discussion with other artists whose work is featured in the video, and welcomed hearing from anyone else affected by the video.
He said because most of the impacted artists do not have registered copyrights for their work, they are primarily looking at “actual damages,” which is calculated based on a variety of components including disgorgement of the infringer’s profits, damage to the infringed party, or damage to reputation.
While street art enjoys standard copyright protections, artists who register with the copyright office are eligible to pursue statutory damages, with set amounts awarded based on certain legal criteria, up to $150,000 per infringed work, Gerber said.
This is not the first misstep by McDonald’s in using street art to enhance its brand’s image. Gerber’s statement notes that the company was sued by the estate of the late street artist Dash Snow in October 2016 for using his signature tag in an interior re-design.
Gerber noted that as the public warms to street art, companies looking to engage consumers are increasingly seeking to incorporate street art into their brands, which in turn has led to more infringement suits. A 2014 story on the legal site Law360 described a rash of lawsuits by street artists against brands ranging from the upscale fashion house Roberto Cavalli to low-cost retailer Walmart. Those lawsuits included phrases like “street cred” and “sell out.”
Copyright infringement by major companies has been a marked problem outside of street art as well. In January, 11 artists sued the fashion company Francesca’s alleging that the company had used their designs without permission. The previous October, L.A.-based illustrator Lili Chin sued mega-retailer Kohl’s and two clothing manufacturers for what her suit called “flagrant” and “willful” copyright infringement, along with other allegations.
In the current McDonald’s situation, the artists contemplating legal action described the fast-food chain as “antithetical to their own values.” They cited Bushwick’s designation as a “food desert,” where residents have difficulty accessing nutritious, affordable food, and the association of McDonald’s with “obesity, diabetes, and hypertension in both adults and children.”
The official video is no longer online, but Gerber pointed out that millions of people could have seen it while it was available. There is a version still available online on a Facebook page.
As of publication time, McDonald’s had not responded to a request for comment.
—Anna Louie Sussman