By Sarah Fleming, Denver
RiNo’s distinctive street art may be free for all to see, but that doesn't mean it's free fodder for a cannabis company’s advertising campaigns.
Diana Perez, a Miami-based artist also known as Diana “Didi” Contreras, filed a lawsuit against Illinois-based Cannabistry Labs in the U.S. District Court of Colorado on February 4. Perez alleges that the company used photos of the mural she created for the 2019 Crush Walls in its Instagram marketing for The Root of It All, a brand of cannabis-infused essential oils, without asking for her consent, much less offering compensation.
“Just because something is in public does not mean that companies can use it for free,” says Perez’s attorney, Andrew Gerber of the New York-based law firm Kushnirsky Gerber PLLC. “People should not confuse public domain with something being publicly visible.”
Perez’s mural, titled “Besties,” is in the parking lot of the Denver Central Market. Perez was one of more than a hundred artists who participated in the 2019 Crush Walls, according to Tracy Weil, co-founder and president of the RiNo Art District, and one of twenty national artists in the lineup last September.
In early October, the Root of It All’s Instagram account posted several photos of a model holding one of the company's products in front of the eye on Perez’s mural. “If someone’s always watching … at least make sure you have your Root of It All,” the post proclaimed. It also directly referenced Crush, but did not name Perez as the artist of the piece. (While the post appears to have been taken down, a screenshot is included in Perez's lawsuit.)
Two Denver-based marketing firms are also named in the lawsuit, though one, PufCreativ, maintains that it was included erroneously and has had no involvement with Cannabistry or the ad in question. A spokesperson for HER Creative Media, the other marketing company named in the case, says that the business cannot discuss ongoing litigation, but that the owners "have been deeply affected by this controversy both personally and professionally. We believe artists, especially those creating public art, are an integral part of the RiNo neighborhood and Denver as a whole." (Cannabistry, the parent company of The Root of It All, has not responded to Westword's request for comment.)
“Had Defendants made even a cursory inquiry with Crush Walls, they would have learned that Ms. Perez created the Mural and that they needed a license to use the Mural for commercial purposes,” the complaint reads.
Weil says that Crush Walls not only signs contracts with participating artists informing them of their rights, but educates viewers of the etiquette surrounding sanctioned graffiti through museum-style signs by each piece that include the artist's name and information. The signs encourage viewers to credit the artist if they post photos of work to social media; sharing art in that way is not only legal, but often appreciated by the artists, Weil says. But using an artist’s work for commercial purposes without his or her consent is an entirely different matter.
When the RiNo Art District gets requests to film in the area — "and people are always filming in the district," Weil notes — the district makes it clear that companies need the permission of the artist if any of the murals are going to be involved in a commercial project.
While Weil says that copyright infringement is “definitely an issue” with street art, lawsuits are rare. Graffiti is often done anonymously and illegally, since artists may not have a building owner’s permission to paint there; as a result, few graffiti artists have taken copyright cases to court. Murals created during Crush Walls, however, are commissioned, legal works of art, and certainly not anonymous.
Last year, over 150,000 people came to Crush Walls, "definitely our biggest year," Weil says. (The 2020 Crush Walls is set for September 14 to September 20.) So far, he adds, the Perez case is the only legal action he's heard about.
In 2014, attorney Gerber represented another Miami-based artist, David Anasagasti, also known as “Ahol Sniffs Glue,” in one of the country's first major copyright infringement cases on behalf of a street artist. Anasagasti's work can also be seen in Denver: He created the distinctive mural of eyes covering a building on the corner of 26th and Larimer streets. American Eagle had used a different version of Ahol Sniffs Glue’s iconic eyeballs in a wide-ranging marketing campaign; one ad even depicted a young, “clean-cut,” apparently white man holding a can of spray paint to the wall as though he, and not Anasagasti (a bearded Cuban man), had created it. The lawsuit, which was closely watched by street artists, was eventually settled out of court.
According to Gerber, that suit galvanized street artists to stand up for their work.
“It’s important for artists to know that they have rights and that they can enforce these rights,” Gerber says. “License fees are a critical part of an artist’s income, and they’re entitled to license fees when a company uses their work. It’s important for the artist financially and emotionally.”
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