By Suchitrra Salva & Geetha Kandiah

Late last year, Lithuanian artist Ernest Zacharevic expressed concern over AirAsia’s use of his iconic mural, Children on a Bicycle, on one of its aircraft. The artwork, painted in 2012 in Penang, Malaysia, was prominently displayed on the airline’s aircraft without Zacharevic’s prior consent. The artist took to social media, tagging AirAsia and its founder, Tan Sri Tony Fernandes, asking, “I think we need to talk.”

While Zacharevic did not specify whether he intends to pursue legal action, he clarified that this is not the first time the airline has used his work without approval. He had previously contacted AirAsia on similar matters but noted that no positive resolution had come from those attempts. In an interview with Malay Mail, Zacharevic said, “I am hoping to resolve this quickly with AirAsia, but should such effort prove futile, I am willing to go as far as it takes to put a stop to this for good.”

Intellectual Property and Street Art

The issue at hand relates to the intellectual property (IP) rights of street artists, whose works are often displayed in public spaces. While public art may be physically accessible to all, the legal ownership and rights to commercialize the work, are still typically retained by the artist unless explicitly transferred. Zacharevic may have legal grounds to argue that AirAsia violated his copyright and moral rights by using the mural in a commercial context without permission.

Public Art and Commercial Use

This situation brings to mind similar legal challenges faced by street artists regarding the use of public art for commercial purposes. A notable example is the Mercedes-Benz and Detroit Mural Artists case in 2018, where Mercedes-Benz (Merc) conducted a photo shoot in Detroit’s Eastern Market, featuring their vehicles with local murals as backdrops. Images were posted on social media without obtaining permission from the mural artists. When the artists approached Merc about the alleged misuse of rights, Merc sued the artists asking Court for a declaration that the artists do not own copyright. Merc claimed that they respect artists and the arts but that there is fair use of the mural and it is “exempt from protection under the Architectural Works Copyright Protection Act,” which permits taking photos of buildings from a visible public place. The case was eventually settled out of court with no reported judgment. Merc took down the posts as “as a courtesy.”

In the H&M and the Revok Mural case, also in 2018,fashion retailer H&M used a mural by artist Jason Williams (known as Revok) in a marketing campaign without his consent. When Revok issued a cease-and-desist letter, H&M filed a lawsuit asserting that the graffiti, being unauthorized, wasn’t protected by copyright. “The entitlement to copyright protection is a privilege under federal law that does not extend to illegally created works”, H&M stated in a letter to Revok’s lawyers. This legal maneuver sparked public outcry, leading H&M to withdraw the lawsuit and settle the dispute, with both parties agreeing to make monetary contributions to art organizations in Detroit, Revok’s hometown.

Looking Ahead

These cases highlight the misconception that public display equates to public domain. Artists retain copyright over their creations, and unauthorized commercial use can lead to legal action. However, legal interpretations can vary, and the fair use doctrine, as seen in similar cases, may also play a role in determining the outcome of such disputes. Companies are advised to seek permission from artists before featuring their work in promotional materials to avoid potential infringement claims.

Back to local front, it remains to be seen how this situation between Zacharevic and Air Asia will unfold, but it highlights an important conversation about the rights of artists, especially when their work is used in commercial contexts. While Zacharevic has stated that he hopes to resolve the matter directly with AirAsia, it serves as a reminder of the complexities surrounding street art, public space, and intellectual property in today’s world.

We will continue to monitor this story as it develops.