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Ask to use the work of others – or face a possible lawsuit like British Airways

“Hey Shoreditch, what if you surprise your loved one this weekend?” The words, used in a British Airways advert, hoped to foster interest in a European city breaks offer. However, it spurred Shoreditch artists to take action. No, they didn't book a holiday.
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The British Airways advert, found by and discussed on the Evening Standard, makes use of Shoreditch street art – allegedly without the artists’ consent. It’s on par with someone taking an image, the pride of an established photographer, and pasting it on their website without due credit.

Of course, there’s wiggle room within the law, but if you’re going to put someone else’s image in such an obvious place, you really need to ask for permission. As a rule of thumb, it should be the first thing you always do, because despite that wiggle space, you’re breaking the law and it leaves you vulnerable to lawsuits. That’s exactly what the Shoreditch artists intend to, the Evening Standard (ES) hinted.

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The company uses artist Berliner Walde as a case in point – she made the Chance Street Mural. Walde told the ES: “My work has been featured in adverts before but I have always been asked for permission first and, if it was a commercial project, been paid. Of course, I am upset. It is disrespectful towards any artist to use their work without permission, be it British Airways or the agency who created the advert.”

British Airways has since told all artists involved to get in contact with agency Clear Channel, which claimed to have found the art in an image library. Whatever the case may be, British Airways should have checked if it was within its rights to use the art – and now, as the ES suggested, “faces a potentially costly legal battle”.

Just because it’s street art, doesn’t mean its free. After creating an original piece of work you automatically gain the copyright rights over it – even if, in the case of street art, it may not be permanent.

“Sometimes incidental inclusion of copyrighted work can take place, and the person who included it may have a defence,” explained Matt Jones, partner of EIP. “However, it looks like British Airways deliberately used the work as part of its advertising campaign.

“If an organisation or individual wants to use someone else’s work, they must first ask permission.  Admittedly, this is difficult when it comes to copyright as there is no official register or database to check. But without it, the person doing the copying is likely to be subject to scrutiny and possibly legal action, particularly if the work being copied is used in a widely-seen and successful advert campaign.

“It is immaterial whether the whole work or a substantial portion of the work is used. Those considering using third party work should err on the side of caution and make enquires to seek the copyright owner’s permission.”

Image: Shutterstock

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Shané Schutte

Shané Schutte is a senior reporter at Real Business, with a particular specialism in employment and business law, human resources, information technology and sales/marketing.

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