top of page
Search

Denim Dilemma: Unraveling the Legal Threads - Should Slawn x KSUBI Jeans be Safeguarded by the CDPA?

Who is Slawn?


Ola Olu Slawn ‘Slawn’ a Nigerian artist now based in London gained recognition for his unique and rebellious tactics approach to his artwork. In March 2023, Slawn showcased his artistic prowess by participating in ‘1440 mins’ where he made art for 24 hours straight with a live stream.[2] He hosted a ‘minute-man swap’ where he swapped the pieces from this 1440 mins project with other British artists. This initiative not only fostered collaboration among artists but also served as an inspiration for aspiring artists, encouraging them to venture into the art world.


In the early stages of his art career, Slawn adopted unconventional tactics such as the incorporation of a fight club to choose a winner for his paintings. [3] Nevertheless, these unorthodox tactics distinguished Slawn from other artists, showcasing his distinctiveness. Importantly, he demonstrated to major brands his substantial social media following, which subsequently led to various collaborations and partnerships.His artworks are also owned by established names in the music and fashion industry such as Skepta, A$AP Rocky and the late Virgil Abloh.[4]  

 




Slawn is known for his distinctive ‘clown’ artwork that he affectionately refers to as Bobo.Slawn has proven that his craft deserves a place in the art market with his works being valued at over £8000. He has shown his artistic abilites by using a myriad of mediums for his art from the brit awards to converting his signature clown print into a chain.[6] In 2022, he collaborated with Skepta in the ‘Contemporary Curated’ exhibition by Sotheby’s where Slawn’s signature clown art is observed in the back of Mama Goes to Market. [7].


The Slawn Effect


Through his artistic journey, Slawn has experienced significant growth, transitioning from a graffiti artist to a multimedia artist. His creative evolution is evident in his utilisation of a wide array of mediums in his artwork, ranging from unconventional choices like a coffin, a London bus, a helicopter, to more traditional mediums like canvas and a car.


“Whatever I have around me or whatever I can reach with my hands is what I’ll use to create,” Slawn shared in a hype beast interview. By repurposing everyday objects and materials, he effectively conveys his unique perspective and reflects his personal journey of self-expression and resilience.


A significant element of Slawn's artistic movement lies in his role as a voice for a marginalised group of young boys who previously had limited exposure to the art world. By representing and expressing their experiences and perspectives through his artwork, Slawn has become a source of inspiration and empowerment for this demographic. Importantly, Slawn's influence extends beyond his immediate artistic creations. Through his unique approach and unconventional tactics, he has managed to attract a new audience, introducing them to the art world and its possibilities. This widening of the audience base not only brings fresh perspectives and diverse voices into the art community but also challenges traditional notions of who can engage with and appreciate art. By bridging the gap between marginalized groups and the art world, Slawn is instrumental in fostering inclusivity and creating opportunities for underrepresented individuals to participate and contribute to the artistic discourse. His influence goes beyond his artwork, serving as a catalyst for positive change and breaking down barriers within the art industry.




Slawn x KSUBI


Most recently, ahead of Ksubi’s, launch in London, the brand collaborated with Slawn to create a limited edition capsule collection with 50  hand painted jeans. This is not Ksubi’s first denim collaboration with an artist as the brand has worked with New York based street artist Hidji and Cartoon Network’s artist Slumpy Kev. Despite the rise of the use of denim as a medium for art, the UK Copyright regime does not protect them. Artists like Slawn follow principles of exclusivity. They incorporate passwords in their website, and treasure hunts which involve buyers answering questions about the artwork. This is put in place to ensure that the people that end up owning his art are ‘true followers’. Therefore, artists such as Slawn require protection by the law in order to fulfil their artistic goals.


Simon Stokes supports this point as mentioned in his book Art and Copyright, ‘the work retain its practical value as a resource for those who create, deal in or exploit art and reproductions of art including online or in digital form or who are otherwise looking for guidance on artistic copyright.’[8]



The Law


The purpose of copyright is to protect the financial interest of the creator. Copyright's value stems from the concern that artists may refrain from creating art if their rights are not safeguarded by the law. Copyright encompasses various rights that apply on a case-by-case basis, depending on the type and medium of the work. Under the main governing statute, Copyrights, Designs and Patents Act  1988 (CDPA 1988) Section 16(2), Copyright is defined as the ‘Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.’

 

However for an artwork to be protected under the CDPA 1988, it will need to fall under certain categories of s3 Literary, dramatic and musical work, s4 Artistic Works, s5 Sound recordings and films, s6 Broadcasts, s7 Cable programmes, s8 Published editions. For the purpose of this essay, s4 will be the focal point of discussion. Under the s4, “artistic work” is defined as ‘(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality, (b) a work of architecture being a building or a model for a building, or (c) a work of artistic craftsmanship’. The section continues to further define terms such as “building” and “graphic work”.

 

Fabric is discussed in Abraham Moon & Sons Ltd v Thornber [9]where it was established that it will indeed fall under “graphic work”. Birss J responds to queries about mediums of art in this case by stating, "Artistic copyright must relate to the content of the work of the artist and not the medium in which it is recorded. It is or should be a ‘content’ copyright and not a ‘signal’ copyright." [10]However this approach has been altered by the most recent judgement in Response Clothing Ltd v Edinburgh Woollen Mill Ltd [11]where the judge acknowledges the lack of an exhaustive list under s.4(2)[12]and stated that a fabric design could not fall under the CDPA as a ‘graphic work’, however, he decided that it could fall under ‘work of artistic craftsmanship’. Response Clothing cited that its ‘wave fabric’ would fall under s4 of the CDPA 1988 in its case against Edinburgh Woollen Mill Ltd which sought alternate suppliers when the former increased the price of its fabric. When analysing the fabric designs in relation to the definitions set out in CDPA 1988, it is clear that there are many unanswered questions. Fabric designs that are made from a drawing are easily protected under the CDPA 1988, but how about those created on a computer or directly on denim such as the Slawn x KSUBI jeans? If HH Judge Hacon’s decision in Response Clothing is followed and the Slawn x KSUBI jeans are offered protection as a work of artistic craftsmanship, one question is solved but another issue arises. It should be noted that in Vermaat v Boncrest [13] Mr Justice Evans-Lombe held that designs of a sample patchwork bedspreads fell under the category of artistic craftsmanship under the CDPA 1988 mirroring the decision by HH Judge Hacon in Response Clothing. 

 

Another argument in this context is that clothes could fall under graphic works.[14]  Further adding lack of clarity to the situation. However, the rebuttal to this point is addressed in Interlego AG v Tyco Industries Inc [15] where it was established that designs transferred by courier did not fall under graphic works as ‘they were not exclusively pictorial but needed, to be understood, the figures and words which appeared on them’[16]

 

Relating to the issue of the Slawn Jeans, it can be established that it is highly likely to be protected by the CDPA 1988 under the “work of artistic craftsmanship” category as seen in Response Clothing. Since this is one of the most recent judgements in this argument, it provides strong support for the Slawn jeans. Having said that, there is no confirmation that fabric would fall under this category as there are differing opinions among judges leading to the fundamental issue with the act – the need for judicial interpretation which has been discussed above in relation to Abraham Moon.


Why Judicial Interpretation can be dangerous to Artists?


When an artwork is placed in the category of artistic craftsmanship instead of artistic work under, the latter is protected regardless of its artistic quality while the former is not. Furthermore, the lack of a definition of a work of artistic craftsmanship adds to the ambiguity.  In Merlet v Mothercare [17], artistic craftsmanship was further defined by Walton J in the Chancery Division.  A two-stage test was identified in this case. [18] The first step involves the assessment of the artist’s intention to create an artwork. The second step is to assess his success or failure of the aforementioned assessment. Mr Justice Tipping in Bonz Group (Pty) Ltd v Cooke[19], that "...for a work to be regarded as one of artistic craftsmanship it must be possible fairly to say that the author was both a craftsman and an artist". [20]


This concern is viewed in the case of George Hensher Ltd v Restawhile Upholstery (Lancs) Ltd [21] where the five law lords gave their opinion on how artistic workmanship should be defined. All of the judges had different views on how to define the word. The lords concluded that the natural and ordinary meaning of the term should be utilised. The lords noted that the ‘courts should not make any aesthetic judgement, but should decide whether the work in question fell within the natural and ordinary meaning of the words;’ [22]. This poses an uphill battle for the judges. How are they expected to judge an artwork by the natural and ordinary meaning while also not making an aesthetic judgment? This statement from Hensher is contradictory and creates unclear precedence for artists and judges alike. Simon Stokes notes that post-Hensher, cases that follow  “do little to clarify things”[23]


As it was said in Bleistein v. Donaldson Lithographing Co[24], the US Supreme Court stated, "[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits."


The issue of judicial interpretation and its potential impact on the protection of artistic works is indeed a significant concern. As of 2022,  90.8% of judges are white. The composition of the judiciary, including its lack of diversity in terms of race and economic background, can affect the understanding and interpretation of artistic expressions that address societal issues, including racism, inequality, and social and political concerns faced by minorities. The perspectives and life experiences of judges play a crucial role in shaping their decision-making process. When judges come from predominantly white backgrounds and strong economic standing, they may have limited exposure to the plights of marginalised communities.


Moreover, the experts and witnesses brought into court to provide insights and opinions on art tend to suffer from a lack of diversity as well. If the majority of these experts share similar backgrounds and experiences with the judges, it can further limit the range of artistic views considered in the decision-making process. This situation underscores the importance of promoting diversity and inclusivity within the judicial system to ensure fair and balanced assessments of artistic works.  Additionally, it highlights the need for ongoing dialogue and engagement between artists, legal professionals, and the wider community to address these concerns. Collaboration and open discussions can help bridge gaps in understanding and ensure that the legal framework surrounding artistic works


In the end...


In conclusion, a shift in approach is necessary to support a vibrant and diverse art market that can flourish over time. To achieve this, it is important to provide further clarity within the statutes, particularly in defining key terms and concepts related to intellectual property. By accepting the intellectual property as a powerful tool, policymakers can harness its potential to drive significant changes not only within the art market but also in relation to social movements. Intellectual property protection should extend beyond economic considerations, encompassing the preservation of artistic integrity and the facilitation of important conversations that shape society.








[1] (2023 BRIT Award Revealed 2023)

[2] (Slawn, 1440 Minutes Live Stream 2023)

[3] (Slawn, Slawn Goes Shopping for Sneakers at Kick Game 2022)

[4] ‘Slawn’  accessed 22 May 2023

[5] Evan Beard, The Four Social Classes of the Art World, ARTSY (Nov. 23, 2018), https://www.artsy.net/article/artsy-editorial-four-social-classes-art.

[6] (Slawn, Slawn Goes Shopping for Sneakers at Kick Game 2022)

[7] (Skepta: Living And Breathing Art 2022)Through his artistic journey, Slawn has experienced significant growth, transitioning from a graffiti artist to a multimedia artist. His creative evolution is evident in his utilization of a wide array of mediums in his artwork, ranging from unconventional choices like a coffin, a London bus, a helicopter, to more traditional mediums like canvas and car. “Whatever I have around me or whatever I can reach with my hands is what I’ll use to create,”[1] Slawn shared in a hype beast interview.

[8] (Stokes, Art and copyright 2021)

[9] [2012] EWPCC 37

[10] (Clark  et al., A fabric design has been found to be a work of artistic craftsmanship: will Response Clothing cause a shift in how UK copyright is assessed? 2020)

[11] [2020] EWHC 148 (IPEC); [2020] E.C.C. 16; [2020] 1 WLUK 291 (IPEC)

[12] (Clark  et al., A fabric design has been found to be a work of artistic craftsmanship: will Response Clothing cause a shift in how UK copyright is assessed? 2020)

[13] Vermaat and Powell v Boncrest Limited (2001)

[14] (Derclaye, French Supreme Court rules fashion shows protected by copyright -- what about the UK? 2008)

[15] Interlego AG v Tyco Industries Inc (1989) AC 217

[16] (Copyright in works of artistic craftsmanship 2000)

[17] ((1976) AC 64

[18] (Clark  et al., A fabric design has been found to be a work of artistic craftsmanship: will Response Clothing cause a shift in how UK copyright is assessed? 2020)

[19] (Stokes, Art and copyright 2021)

[20] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903).

[21] (1984) 2I.O.R.456

[22] (Kenny, Case Note Artist Craftsmanship: Merlet v. MothercareP.L.C 1985)

[23] Bonz Group (Pty) Ltd v Cooke ((1994) NZLR 216, 223)

[24] (Copyright in works of artistic craftsmanship 2000)


28 views0 comments

Recent Posts

See All

Comentarios


bottom of page