Art

How Bootleggers and Brands Became the Biggest Foe for Graffiti Artists

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Almost 30 years ago, Andre Charles could command $200 for one of his signature murals painted on a storefront gate. Two hundred dollars for a full panel that might take him days to conceive and execute. It was a lot of work for little pay, but it beat selling airbrushed T-shirts out of a backpack.

“Two hundred dollars?” Charles remembers today. He’s piloting a beat-up Ford Explorer down Havemeyer Street in Williamsburg. “If you made two hundred dollars, you were rich back then. This the late Eighties, you know? Two hundred dollars, you’re making money.”

It was mutually beneficial for the shops. Graffiti art in New York City exploded in the 1980s. It seemed like every kid in New York who could round up five bucks for a can of Rust-Oleum was tagging walls — most of them very badly. So the store owners who hired Charles figured his murals — big, bright cartoon figures and bubble letters — were a lot more interesting to look at than the messy scrawlings that were likely to show up on their gates anyway. Charles’s murals, as well as those he would eventually create with the small crew he assembled, were works of art. The taggers in the area generally respected them, declining to write over his creations. Commissioning someone like Charles to paint a gate was inoculation, in a sense, against the vandals.

Unfortunately for Charles, he was ahead of his time. In the Eighties, graffiti was still finding its legs as an art form. It hadn’t yet developed the cachet that it would in the ensuing decades, and it certainly wasn’t considered a selling point in the city’s wealthier neighborhoods. As Charles turns the corner at Havemeyer and South Fifth Street in Williamsburg, a mural on a shop gate appears. “Brooklyn Yoga,” it says.

“I used to paint gates like that,” Charles says, pointing. “Well, maybe not exactly like that.” He grins and steps on the gas, climbing the ramp to the BQE, headed for the same Lower East Side where for more than twenty years his career was focused. Right foot on the gas, his left knee joggles with a nervous energy.

Charles is 46, but hardly looks it; the prominent dimples help. So, too, do the wide eyes and round cheeks. He’s giving a tour of some of his old haunts, showing off a few of the murals he’s done that remain in certain corners of the city: One, his “NYC” mural in the Flatiron, has been the source of some stress in recent months. It’s a simple design, white lettering on a red background, originally devised in a corner of a parking garage on Fifth Avenue at 26th Street. It was never supposed to be one of his most recognizable pieces, but it’s become just that — mostly thanks to the unauthorized vendors he says have been ripping him off by screen-printing the mural on anything they think might sell. In fact, the T-shirt he’s wearing with his baggy jeans and sneakers is one of those bootlegs.

It’s remarkable enough that an art form once relegated to subway tunnels — quite literally the urban underground — is now used to advertise yoga in a neighborhood that’s become a byword for gentrification. And in 2015, when artists like Banksy and Shepard Fairey are among the most famous names in the art world — when an original Banksy can sell for up to $1.9 million — the fact that graffiti art is now big business is hardly news. But more and more, street artists are being forced to protect their rights in court, to defend both their works and the potential profit that can derive from them.

Charles has been a fixture in New York’s street art scene for nearly 30 years and was among the first to make a living through his pursuits. But for the past few years he’s been encountering a form of theft that would have been impossible until recently. It was three or four years ago that he began to notice cellphone cases, T-shirts, purses, and bookbags, all featuring images of his work. At first he was amused, but the more he saw, the angrier he got. Now he has an attorney.

“I never thought I’d need a lawyer to represent me,” Charles says, shaking his head.

Charles has always seen his creative efforts as a means to an end. He was introduced to the visual arts as a kid at Children’s Village, a group home north of the city in Dobbs Ferry, New York. Born in the South Bronx, he moved into the home at age twelve after years of struggling in school. “I used to act out in class,” he remembers. “But I didn’t know why I was acting out.” He would later learn that he had dyslexia.

Children’s Village was a restrictive environment, with a regimented daily routine — “like a boot camp,” as Charles describes it. But it wasn’t all bad. The programs there offered a lot more individualized attention than he’d received back home. Most importantly for Charles, it was a place that encouraged kids to explore new pursuits. He fell in love with drawing, and, while he might not have realized it at the time, the structure was what he needed. “I loved it,” he says. “I hated it and I loved it at the same time.”

After two years in Dobbs Ferry he returned to his old neighborhood. It was the mid-1980s, the height of New York City’s crack epidemic. Suddenly, he felt out of place.

“I was fifteen years old, and I remember leaning on a mailbox, on 170th Street and Clay Avenue,” he says, recalling an incident from shortly after his return to the Bronx. “And I see what’s going on in my neighborhood. I see the drug dealers, I see the robbers, I see the crackheads….And I’m like, damn, I don’t really have a lot of options. I got used to being upstate, and spoiled.”

He started dabbling in graffiti. It not only appealed to his need to find an identity after returning home, but allowed him to indulge his artistic ambitions while maybe earning a little money. He had to do something. “If you don’t have a plan,” he says, “you go to jail or you’re dead.”

Charles had no interest in selling drugs. He neither drinks nor gets high. He says he’s smoked weed once in his life. But as he started to pursue his artwork in earnest, he began to see himself as a different kind of hustler, one who dealt in paint and fabric instead of powder and baking soda. He started with small jobs, making flyers for club promoters and selling airbrushed T-shirts to the few people in the neighborhood who had extra cash to spend. “Who got all the money?” he asks, somewhat rhetorically, about the crack-era South Bronx. “The drug dealers!”

Charles would buy a dozen plain T-shirts wholesale for a dollar apiece, emboss them with one of his designs, and sell them to the neighborhood dealers for ten bucks each. A pot dealer from the neighborhood asked Charles to create branded T-shirts in the cartoon style that would come to be his trademark. Charles would sell him a batch of T-shirts, and the dealer would give the shirts away to his clients as marketing swag. “The face was green and he had, like, weeded-out eyes,” Charles says of the character he created. Some of the other dealers on the block requested designs with certain other themes. “Before I know it, I’m selling crack T-shirts. I’d draw characters with crack bottles, Mickey Mouse with crack bottles.” He laughs and shrugs. “I didn’t care. That’s what they wanted, so that’s what I’d do.”

Charles eventually assembled a crew of other artists in the neighborhood. The group, which he called TCT — The City’s Talent — was for hire. They would paint storefronts and gates in and around the Bronx. They would also paint murals on the street, but Charles had two ground rules: He wouldn’t paint on walls that were clean and unmarked — preferring, instead, to make something beautiful on a wall that was already tagged — and no churches. “That’s God’s house,” he says.

Fairly quickly, Charles and his crew started to gain notoriety. His most recognizable image back then — a bug-eyed baby in a diaper — had a softer feel than much of the wildstyle writing of the time. In 1988, he helped artist and activist Keith Haring establish his Pop Shop gallery and arts space on the Lower East Side. In the Nineties Charles opened his own shop on Houston Street, where he sold T-shirts bearing his work, as well as paints and art supplies.

Charles says he never bought into the idea that street artists had to eschew paying work. He always loved painting on the street, but he was also a businessman, he says. He wasn’t interested in pursuing art for art’s sake; his goal was to “eat better every day” with the skill set he possessed.

In the early Nineties, he used a patch of wall outside of his shop to help spread his name and land him more lucrative contracts. The wall was a protean canvas, a way to “comment,” as Charles puts it, on whatever was going on at the time, often with a provocative and sometimes political spin. After the death of rapper Tupac Shakur, Charles painted a mural that could be read as an indictment as much as an honor; “Live by the gun, die by the gun,” read the slogan painted below a portrait of Shakur. On top were the words “stop the violence.” In the 2000s he would start to land higher-profile projects with clients like DKNY and Mountain Dew.

But Charles also had his standards; he wasn’t selling his services to the highest bidder. In 1997, the New York Times wrote about a mural he put up near the store. As he recounts the story today, R.J. Reynolds, the country’s second largest manufacturer of tobacco products, had approached him about working on an ad campaign for Camel cigarettes aimed at an “urban” audience. Charles turned down the offer but painted the mural anyway, only with a somewhat different vision: the famous cartoon camel as an emaciated corpse surrounded by tombstones, and a slogan reading “don’t believe the hype.” He told the paper at the time that it was “time to hang corporate America for a change.”

What Charles has been dealing with lately is fairly cut-and-dried. Under well-established copyright law, anyone using his designs to sell products is stealing. This is true partly because he’s been diligent about both signing his artwork and officially registering his larger works with the U.S. Copyright Office. The kind of theft Charles has been encountering is common in the world of graffiti art, says Philippa Loengard, a lecturer at Columbia Law School. What isn’t common is an artist fighting back.

“Infringement isn’t new, unfortunately,” she says. “I think the thing that’s new is taking legal action to enforce your copyright.” Street artists, she adds, have historically been reluctant to protect their rights for a variety of reasons. For some, there are political concerns. They’re painting on the street precisely because they aren’t interested in the formal art world. Bringing a dispute into the courts is anathema, philosophically. But the biggest issue, unsurprisingly, is money. Which isn’t to say they wouldn’t have a good case.

An original work of art of any kind already has automatic copyright protection, although there’s a bit of a catch: In order to be able to file suit for damages, an artist has to seek formal registration with the authorities at the U.S. Copyright Office, which Charles did. The protection exists, in theory, for unregistered works, but nothing can be done to enforce it.

But street artists who have the foresight to seek official registration have been defending those rights with increasing frequency. In 2011, a group of Bronx-based graffiti artists known as Tats Cru sued auto manufacturer Fiat after one of their murals appeared in a car commercial. The commercial, titled “My World,” features Jennifer Lopez cruising through the Bronx with city scenes in the background, one of which included the group’s work. The artists were able to settle with Fiat for an undisclosed sum.

Wilfredo Feliciano, who, as a member of Tats Cru, paints under the tag “Bio,” says policing copyright is a constant battle. “We’ve come to think of it as just a part of doing business,” he says. Part of the problem, he thinks, is that people have gotten the incorrect impression that if something is outside, in public, it’s fair game. Feliciano, who is 49, says Tats Cru has been copyrighting its work for the last decade. “We didn’t always do it, we just started when we realized that it [infringement] was a problem.”

In Miami, artist Ahol Sniffs Glue had a similar dispute with American Eagle Outfitters last year, after the company lifted his artwork — his signature design includes drowsy eyeballs arranged in repeating patterns — for use in ads and on its website. The artist, whose real name is David Anasagasti, characterized the company’s actions in court papers as “blatant, unlawful, and pervasive infringement”; it had allegedly even hired an artist to re-create Anasagasti’s pattern for a promotional event in Colombia. That case was also settled. When they do fight back, the artists have been winning.

Charles, for his part, started copyrighting his works almost from the beginning. It was an art teacher at Walton High School who showed him how to make, as he called it, a “poor man’s copyright” by taking pictures of his paintings, putting them in an envelope, and mailing them to himself via certified mail. Charles would then stash the unopened letter, just in case anything came up. The method preserved the date on the outside of the envelope: proof that he’d created the work when he said he had. “I still have those first drawings from way back in the day,” he says. “I never opened them.”

It was only later that he started going through the formal copyright process. It’s something most artists still don’t do, Charles says, especially those of his generation, and from neighborhoods like his. “The majority [of those who routinely copyright their work], it’s not the urban guys,” Charles say. “There are a lot of artists that are painting now, they have the family funding and wealthier backgrounds. They have the good attorneys.”

Copyrights are a problem, but there are even thornier questions for street artists. What happens when an artist installs artwork on property he or she doesn’t own? In June, a group of artists sued the former owner of graffiti mecca 5Pointz, the warren of abandoned warehouses in Long Island City that had for twenty years served as a freeform canvas for a generation of painters. The plaintiffs — five artists who had received permission from site curator Jonathan Cohen and owner David Wolkoff to paint on the property — said their rights had been violated when they weren’t allowed to remove their murals before the building was destroyed to make way for a residential complex.

The plaintiffs made their claims under the 1990 Visual Artists Rights Act, which grants artists significant protections over their creations in situations where they don’t own the space in which — or on which — the work is created.

It’s especially applicable to street artists, for obvious reasons, says Loengard. 5Pointz is a unique situation, because while Wolkoff didn’t formally commission the works that appeared there, he did make the space available for artists to use.

But according to Loengard, even those painting illegally have protection over their work. It’s not a question that has thus far been litigated. But in her view, Loengard says, “all street art has copyright protection. Because the requirements for copyright protection are fixation — it has to be fixed for a recognizable amount of time — and it has to be original.” And that’s about it. The fact that something is created illicitly really shouldn’t matter. But that’s something that will have to be worked out in court.

Charles’s dispute ultimately had a happy ending. Earlier this summer, he decided to take action against the vendors that were selling his work, a series of boutiques and clothing stores all over the city. Charles quietly visited the stores and photographed the infringing works being sold. When he had gathered proof, his lawyer threatened legal action.

Armed with proof of copyright, there wasn’t much to argue with, according to Charles’s attorney John Rosenthal, who declined to name the vendors. They didn’t even put up much of a fuss before agreeing to an undisclosed settlement. But that’s mostly a function of the copyright registration, Rosenthal says. If Charles hadn’t been so attentive to the registration issue, things might have been different. “It kinda saved me,” the artist says today.

Even so, no sooner had Charles struck an agreement with the stores selling images of his NYC mural than he spotted street vendors hawking images of the same mural. Outside of the Metropolitan Museum of Art a few weeks ago, Charles saw a man with a boxful of photographs on white matting, several of them shots of graffiti murals. He thumbed through them — sure enough, there was his work.

Charles, with an eye now on documenting this kind of infringement, made a purchase and tried to get the seller — who is licensed by the city — to write him out a receipt. The man refused. Charles and Rosenthal recently sent a pair of letters to Mayor Bill de Blasio’s office and Bronx Borough President Ruben Diaz Jr. documenting the infringement, hoping to get the vendors shut down. The game of whack-a-mole continues.

“Other artists need to be careful,” Charles says. “The old-school cats, especially, are the ones that are hurting.

“You have rights to your work. It’s your work. Don’t let people step over you.”

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