Nationally renowned muralists Thomas "Detour" Evans and Hiero could never have predicted where an uncredited close-up of their portrait of George Floyd — one of the most essential artworks created in Denver in 2020 — would land: in the Denver Business Journal's annual Book of Lists, published on December 25. The publication used the portrait of the man, whose death at the hands of Minneapolis police triggered a summer of anti-racist protests, to introduce lists of big players in "Corporate Colorado."
And they certainly couldn't have predicted that the work would be reproduced without a mention of the people who made it, its location (East Colfax Avenue and High Street), or the name of the victim of police violence depicted by these artists as part of their Spray Their Name series.
So when Westword asked Evans if he knew his work was used in the Book of Lists, he was surprised...to put it mildly.
"I had no clue about this and will be looking into it," Evans told Westword on December 29, before declining to comment further.
He has a lot to look into, from potential copyright violations to yet another example of how street art in Denver is being used by businesses to make their brands trendy and culturally inclusive, sometimes without even acknowledging the artists involved.
Photographs of murals around Denver lead into various sections of the Book of Lists. One of Koko Bayer's hope hearts, part of the longtime Denver artist's #ProjectSpreadsHope series, introduces the section on finance companies. Two of Austin Zucchini-Fowler's images — one paying homage to teachers and another to health-care workers — are used to start sections on health care and nonprofits. The table of contents has photos of two paintings of women kissing — one by Julia Rose Morgan and Julia Williams, and the other by Karlee Mariel and Armina Jusufagic. The issue also includes Patrick Kane McGregor's iconic dog and a charging rhinoceros from Think426, while Nick Napoletano's work at the Dairy Block graces the cover.
How did we identify all the art? For the pieces we didn't recognize (most we had covered), a tool called Google. In addition to Westword, the Denver Post, 303 Magazine, Rocky Mountain PBS, 9News and other outlets had covered their creation; many of the original murals included the Instagram handles of their creators, so contacting them wasn't exactly tricky.
Some of the artists, including New York's Menace Two and Resa Piece, who had spent their own money painting a celebrated mural of Ruth Bader Ginsburg while they were in town for Crush Walls in September, were just as surprised as Evans to discover an uncredited close-up of their painting had been used without their permission and also taken out of context.
"Luckily for us, we are friends with a copyright lawyer," Resa says. "So we will ask him if we even have a case. Since it is public work, anyone could freely take pictures of the artwork. However, if a company or business is using the artwork for profit without notifying the artist, the artist could pursue legal action. It seems like the Denver Business Journal Book of Lists can be accessed by signing up for a paid subscription. Therefore, they are using the artwork of different artists for their financial benefit without letting any of the artists know. Seems unethical!"
Asked about the use of the uncredited works in the Book of Lists, Denver Business Journal editor Rebecca Troyer offered this statement: "While it was purely an oversight that individual mural artists aren't credited in the print version of our Book of Lists (credits do appear in the digital edition), our goal in highlighting these public works was to underscore the intersection between art and business and help raise awareness of the local arts community. We are communicating directly with the artists to give them even further exposure within the business community by featuring their work not only in the digital and print Book of Lists, but in future DBJ profiles that include the ideas and inspiration behind their works. We’re also offering to share their contact information in the event any of our business audience wishes to commission their work in the future.”
Troyer's belated communication with the artists has included not just offers of a profile, but a $200 gift card, which didn't cut it with Resa and Menace. "The $200 gift card is kind of insulting," says Resa. "Especially after they made no effort to reach out!"
Artist Tracy Weil, head of the RiNo Arts District, which has produced the popular Crush Walls street-art festival through this year, offers just a monosyllabic "Wow!" when asked about using street-art photographs to augment the Book of Lists.
According to Weil, the issue of copyright infringements comes up from time to time for businesses that use street art without permission. "It's my understanding that if a business wants to use any artist's work for commercial purposes they should get permission from the artist," Weil says. "It's not uncommon for the artist to receive a stipend for use. The artist retains the copyright to their work, even work in the public realm. The artist should always be given credit. Press outlets are a little different from the permission standpoint; artist's credit is always encouraged."
When the RiNo Art District commissions a mural, the artist signs a contract granting permission for the piece to be used for promotion and marketing for the district and nothing else. "If other businesses want to use the work, they need to reach out to the artist directly," Weil explains. "If an artist sees a possible copyright infringement, I always encourage them to reach out to the company who used their work to discuss."
And some of the artists whose work appeared in the Denver Business Journal are ready for that discussion.
"Bottom line: If they are using this in a publication that they are making money off of, it's copyright infringement," says artist Julia Williams. "They should have contacted us, which wouldn't have been difficult. Then we would have been able to learn more about how the art was being used, in order to make decisions on compensation for it. Once again, I feel like this would be a different situation if this was a news publication that directly discussed the artwork, but as it is, they are just using it to make their publication more beautiful, which should have been a discussion with the artists."
Adds Morgan, Williams's collaborator: "I had no idea that any of my work was published by them recently. That is a bummer and qualm indeed that they couldn’t bother to credit us. Happens a lot with advertising. Those are the most common scenarios where I’ve reached out to brands to request credit if they’re using my public work to sell stuff. It’s kind of a gray area, because it’s 'public work,' but also pretty lame considering how much all artists and people in general deserve recognition for their work. Especially if it’s in a publication! Lame."
The Denver Business Journal — which is locked online behind a paywall, where it is available to print subscribers (subscriptions are $140 a year, and the magazine says it has 17,219 paid subscribers) — apparently takes a conservative approach to copyright law. "Reproductions or use, without permission, of editorial or graphic content in any manner is prohibited," the Journal cautions.
Cathay Y.N. Smith, a University of Montana law professor who has written extensively about intellectual property rights, art and street art, explains that copyright law "automatically protects any work of authorship that is fixed in a tangible medium, and murals and street art are covered under the law. But before artists could pursue legal cases, they would need to file copyright registration paperwork, which they can do even after a violation of their rights.
After reviewing photos of how the Denver Business Journal used images by Evans and Zucchini-Fowler, Smith says, "it appears that [the publication] copied the art without authorization for no other reason than for aesthetic reasons. And so, they’ve made a reproduction of the work. You could also argue that they potentially made a derivative of the work, taking a work from an artistic medium, which is the wall, to a magazine page. Their unauthorized use is being publicly displayed in their magazine, so likely considered an infringement of the artist’s copyright."
Not all of the artists whose works were included in the publication are concerned about the journal's use of their images, however.
Bayer, who creates her hope hearts as a gift to the public, says she doesn't have a problem with the Journal using her imagery. "#ProjectSpreadHope was never intended to be about me," she explains. "Its only intention is to make people feel a little better. The idea is to get as many hope hearts out there as possible, so being in any publication or TV story is a win for the project.
"I do appreciate it when journalists take the time to track me down," she adds. "It’s not very hard. All they’d have to do is Google 'hope hearts denver' to find me. #ProjectSpreadHope has been primarily funded by people contributing to our print fund, so it does help when stories connect to me, but if they don’t, it’s okay. I have a quote on my desk that says, 'If I can’t change it, I’m not going to worry about it.'"
Zucchini-Fowler, too, says he's not possessive of his work and isn't particularly bothered by the use of his images.
"I believe the right thing to do is give credit to all the artists featured," he says. "However, I think it is tricky, because my murals are public works. I painted them for the public to view for free. So the only difference in these works being seen in a magazine vs. real life is simply the credit. If they were making money off the production, I might feel different."
The Journal's Book of Lists, a treasure trove of contact information for the biggest players in multiple sectors, takes relatively little note of the arts, culture and entertainment industry, a sector that contributed $13.7 billion to the Colorado economy in 2018, according to the Office of Economic Development and International Trade. Street artists, some of whom are among the most successful entrepreneurial artists in Denver, are not listed, though many businesses have commissioned work from them for everything from restaurants and bars to real estate projects and other new developments. The publication does, however, include lists of athletes, craft breweries, ski areas and golf courses (separating public and private).
Shawna Seldon McGregor, a publicist who's a Denver Business Journal subscriber, recognizes that art is big business. She represents several street artists, including husband Patrick Kane McGregor — whose uncredited work appears in the Book of Lists.
"As a publicist, I’m in the business of providing content including text and images to press outlets, so I’m okay with the use of art for this, because I think it is being used editorially and not for an advertisement," she says. "However, I think it was an enormous oversight not to properly credit the artists."
Adds Patrick McGregor: "They should have at least tagged the artists and not slapped a slogan in front of the art piece to make it for their magazine agenda, especially the Detour/Hiero George Floyd one. Pretty bad judgment there."
The George Floyd image in the digital edition has been replaced with a different Thomas Evans image, according to Troyer, and the Ruth Bader Ginsburg image has been replaced with another image supplied by Evans. But lingering questions about usage — both here and in other projects — remain.
"As the wife of one of these artists, I do think proper compensation for artists is a huge issue," says Shawn McGregor. "I think all of Denver’s artists need to be better compensated for use of their work."