February 10, 2016 Practice Points

Hayuk v. Starbucks Provides a Warning to Abstract Artists

This case should serve as a warning to both artists whose works are composed of predominantly unprotected elements and to the attorneys who represent them.

By Marcus R. Chatterton and Michael P. Taunton

On January 12, 2016, the Southern District of New York ruled against artist Maya Hayuk in her lawsuit against Starbucks Corporation and 72andSunny Partners, LLC for copyright infringement. Hayuk, an internationally renowned muralist who is known for her use of bright colors and overlapping geometric shapes and rays, alleged that Starbuck's "mini Frappuccino" advertising campaign misappropriated the "total concept and feel" of five of her works (with titles including "Hands Across the Universe," "the Universe," "the Universe II," "Kites #1," and "Sexy Gazebo"). Prior to launching its mini Frappuccino advertising campaign, Starbucks (through its advertising agency, 72andSunny) approached Hayuk about the possibility of using her artwork in the campaign, but Hayuk turned them down. Starbucks went forward with the advertising campaign that featured a series of brightly-colored, overlapping rays and had remarkable stylistic similarities with several of Hayuk's works—particularly when compared to sections of Hayuk's works.

As the Southern District of New York noted, however, neither Hayuk's style nor her ideas are protected by copyright law—only certain expressions of an idea can be protected, not the idea itself. As such, in order to prove that Starbucks had misappropriated the "total concept and feel" of her works, Hayuk had to prove either (1) that the protectable elements of her works, "standing alone, are substantially similar" to Starbucks advertising campaign, or (2) that Starbucks had misappropriated "the original way in which [Hayuk] had selected, coordinated, and arranged the elements of [her] work." Hayuk's works, however, are comprised entirely of bright colors and overlapping geometric shapes and rays—all elements that the Southern District of New York found were unprotected, standing alone, because the expression of the idea (a regular geometric shape or a color) merged with the concept itself. Thus, Hayuk had to rely solely on the specific arrangement and coordination of those unprotected elements.

This, in the court's eyes, she could not do. Although the Court noted striking similarities between Starbucks' advertising and elements of Hayuk's works when those elements were cropped and rotated, the Court found that those similarities faded when Starbucks' advertising was compared to the whole of Hayuk's works. Further, as Hayuk was forced to prove that Starbucks had misappropriated the "total concept and feel" of her works, the Court found that it was improper to compare Starbucks' advertising only to cropped selections of Hayuk's work. As such, Hayuk could not—as a matter of law—prove that Starbucks had in any way misappropriated her works, and her claims were dismissed.

This case should serve as a warning to both artists whose works are composed of predominantly unprotected elements (such as abstract artists) and to the attorneys who represent them. Though many casual observers may immediately perceive the similarities between Hayuk's work and Starbucks' advertising, this case highlights the fact that when the expression of an idea and the idea itself merge, the expression may lose any copyright unprotected. Thus, when dealing with abstract art like Hayuk's, an artist is frequently forced to rely solely on the arrangement and coordination of objection for legal protection of their work—and as this case shows, even that protection can be defeated through the simple use of creative cropping and recoloring.

Keywords: intellectual property, litigation, Hayuk, Starbucks, copyright infringement, art, muralist, artist

Marcus R. Chatterton and Michael P. Taunton are with Balch & Bingham LLP in Birmingham, Alabama.


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Marcus R. Chatterton and Michael P. Taunton – February 10, 2016