Illegal Street Graffiti deserves Copyright Protection. Here’s Why.
When graffiti meets the minimum requirements for copyright protection it should be protected despite its illegality. Copyright should be neutral towards works created by illegal means. Because copyright should only be concerned with the immaterial work, the artist’s material transgressions should not exclude the work from copyright protection.
The nature of street graffiti may be original and artistic, but such artworks usually attach themselves to someone else’s property and are created without the permission of the property owner. Moreover, during the creation of unsanctioned graffiti, the graffiti artist may have committed trespass, violated state vandalism laws and committed a tort against the property owner.
The question of protecting such artworks is growing importance today owing to the popularity graffiti movement. Murals created by well-known street artists have huge economic value in the market. Murals of the famous street artist Bansky have been removed from their place and have been auctioned for massive amounts of money. A graffiti artwork may actually increase the value of the painted property, for instance, when it is placed on a run-down building, or when a famous graffiti artist creates it. Growing popularity and appreciation for graffiti art can be seen from the fact that Prime Minister David Cameron presented President Barack Obama with the graffiti work of Ben Eine on his first trip to Washington. Michelle Obama experimented with tagging alongside a well-known British graffiti artist, Mr. Brainwash, as part of her Let Girls Learn initiative.
As the popularity of graffiti rises, there is a growing need for legal protection for graffiti artists who create unsanctioned work. Consumers and the public are gaining interest in this artistic movement and often are appropriating these artists’ work without permission. Books, CD’s, T-shirts and other items featuring graffiti artworks are often released without the permission of original graffiti artists. Artists in turn are bringing more lawsuits in an attempt to assert a copyright to protect their art. Let’s look at copyright issues surrounding unsanctioned graffiti, that is, graffiti that has been fixed to a surface without the permission from the owner of the surface. Although, there is no judicial precedent in India concerning copyright claims brought by graffiti artists against property owner or third parties appropriating their unsanctioned graffiti, the US cases discussed hereinafter will be certainly looked at, should such a scenario arise in India. Also, amongst the Berne Convention countries, copyright protection is not strictly territorial and therefore, whether unsanctioned graffiti is protected in countries such as USA, and the reasons for the protection (or lack thereof) will be worth noting in the Indian Copyright context.
In spite of graffiti’s prominence in the artistic world, though, the world of intellectual property (IP) considers unsanctioned graffiti a “negative space” where areas and industries [are] unregulated, or only partially regulated, by de jure IP law.
Statutory Requisites for Copyright Protection
Under Section 11 of the Indian Copyright Act of 1957, copyright protection exists for an original “artistic work” and section 2(c) defines artistic work as painting, a sculpture, a drawing (including a diagram, map, chart, or plan), engraving or a photograph, whether or not any such work possesses artistic quality”. Copyright in artistic works entails “the exclusive right to make, distribute, and sell copies of the works, the right to create derivative works, and the right to display their works publicly. These rights extend for the lifetime of the author plus sixty years. An author/owner need not register the work with the Indian Copyright Office in order to obtain protection under the Act. Yet, registration creates legal advantages to prove copyright ownership, notice of ownership, and increased damages for unauthorized uses. An author also has moral rights in his work. Moral rights of an artist protect the artist’s personality and the work’s spirit and integrity through preservation of the art. The author of an artistic work has a right of authorship, right of integrity, and right against destruction. The first right allows the artist to claim authorship, prevent the use of his name in a work he did not create, and prevent the use of his name in the event of a distortion, mutilation, or modification of the work that would cause harm to her reputation. The right of integrity prevents an intentional distortion, mutilation, or modification that would be prejudicial to the artist’s reputation.
When looking purely at the statutory requirements without taking into account the illegality of the creation act, graffiti qualifies for copyright protection. Under Section 2(c) read with section 13 of The Copyright Act 1957, graffiti is a fixed original artistic work of authorship that qualifies for protection under “painting, graphic, drawing and sculptural works.” Scholars and courts consider sanctioned graffiti copyrightable.
One other requirement, although not expressly stipulated in The Copyright Act 1957, is the fixation of the work in a medium. In other words, since there is no copyright protection on ideas and facts, it is only the creative expression of such ideas and facts that is rewarded by law and the work has to be fixed in a medium. The requirement of fixation is also seen in the US Copyright Act and Section 101 of the US Copyright Act establishes that a work is fixed in a tangible medium of expression when it is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
The fixation requirement could possibly pose a problem in justifying that graffiti meets all the requirements for copyright protection. Graffiti is often temporary, in that it fades away or is often painted over by the owner of the surface or another graffiti artist. Some graffiti artists welcome other artists to paint over their work so as to continue an “artistic dialogue.”Yet, this fading or painting over does not preclude the justification of a copyright. A graffiti artwork, for example a painting, done on a wall is as fixed as any other painting done on canvas or other traditional surface. Granted that a graffiti artwork will be more prone to fading and destruction owing to harsh weather conditions than a painting fixed on a canvas; the graffiti artwork was sufficiently fixed when it was created, thereby satisfying the fixation requirement to enjoy protection.
Yet, trouble arises when graffiti’s illegality is taken into account. Scholars against copyrighting graffiti have argued that graffiti does not enjoy copyright since the protection does not extend in compilations and derivative works that unlawfully use copyrighted material. Yet, there is no explicit prohibition that illegal work itself cannot be copyrighted neither in the Indian Copyright Act 1957 nor the US Copyright Act, and courts have yet to rule definitively on this matter.
Absence of Justifications for Excluding Protection to Graffiti
Graffiti should, on its face, qualify for protection under the Copyright Act, as it is an original artistic work of authorship. Since it satisfies these statutory requirements for protection, therefore, the question now is that for what reasons copyright law has to refuse it protection. To analyze this, we need to examine the Copyright infringement cases involving graffiti and the defense of the parties who appropriated the graffiti artwork. Such disputes are generally not favorable to graffiti artists or are settled out of court but illustrate that courts approach unsanctioned graffiti art under a copyrightability analysis rather than merely denying copyright protection due to illegality of creation. It can be inferred that courts have implicitly accepted that unsanctioned graffiti is copyrightable.
1.Defense of illegality of the work
In the US case of Villa v. Pearson Education, Inc., a work of graffiti’s copyright protection was challenged due to the work’s illegality. The graffiti artist Hiram Villa, known as UNONE, brought an action for copyright infringement against Pearson Education for publishing a book featuring his murals entitled Tony Hawk’s Pro Skater 2 Official Strategy Guide. Pearson moved to dismiss on the grounds that the murals were illegal graffiti and thus not protectable under copyright law. Yet, in a previous motion, the court found this argument unpersuasive, stating, “We assume, without deciding, that the work is copyrightable and was, at some point before its appearance in the Guide, fixed in a tangible form.”The court denied the motion to dismiss because the copyrightability of the work was a question of fact and the case then settled out of court. Yet, Villa highlights that the court accepted, without deciding, that the unsanctioned mural was copyrightable.
Another dispute involved Peter Rosenstein’s book Tattooed Walls, which displayed over one hundred murals found in New York City.A dozen artists whose works were featured in the book sought a settlement, but Rosenstein argued that he did not need their permission because the murals were in public spaces and his use was covered under the fair use doctrine. In sum, Rosenstein defended himself on illegality grounds, but also appealed to an exception to copyright liability — fair use. The parties ultimately settled, and the book was taken off the publisher’s catalogue. But the fact that Rosenstein took the fair use defense implies that that Rosenstein recognized that the court could have found the graffiti murals did actual enjoy copyright.
In another dispute, the clothing company Urban Outfitters printed t-shirts depicting the signature of graffiti artist Cali Killa. Urban Outfitters discontinued the use of his work according to the terms of a settlement. These severe settlements, resulting in the rescinding of the books and clothing rather than just damages, reveal the power a copyright infringement case can have for appropriation of unsanctioned graffiti.
A fair use exception analogous to that pleaded by Rosenstein, exists under the section 52(1) Indian Copyright Act 1957, which reads that the act of “making or publishing or a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under Section 2(c)(iii) of the Act, if such work is permanently situated in a public place or any premises to which the public has access” will not constitute an infringement of copyright. The fair use defense can be said to presume that the work itself enjoys copyright but the challenged act is not seen as an infringement of copyright of the work.
In Reece v. Marc Ecko Unlimited, the graffiti artist Daniel Reece, known as Dip, brought suit for infringement of his artwork and persona, which were used in a video game developed and sold by the defendants. The court held that the name “Dip” is not protected by copyright law, that certain fonts or lettering styles are “mere variations of typographic ornamentation, lettering and coloring,” that use of certain colors is not itself subject to copyright protection. The court ruled in defendant’s favour due to the work’s inability to obtain a valid copyright because of color, lettering, and fonts, but not because of its illegality.
In Seltzer v. Green Day, artist and illustrator Derek Selzter created Scream Icon posters, which were sold and given away. His work was prominently displayed across Los Angeles as street art. Green Day then used the Scream Icon on its tour as a video backdrop to the song “East Jesus Nowhere.” The work was modified with a red spray-painted cross over the middle of the screaming face, a change in contrast and color, and by adding black streaks running down the sides of the face. Green Day argued the video backdrop constituted fair use under Section 107 of the Copyright Act. The court determined that Green Day’s use was transformative because it was only a component of a “street-art focused music video about religion.” The court therefore concluded that it was fair use. The entire fair use analysis done by the court presumes that Scream Icon was a copyrightable work, even though it was illegally plastered on a wall. The court treated it as any other work of art that had been sufficiently transformed.
In a popular case, pop musician Katy Perry attended the Met Gala wearing a dress designed by Jeremy Scott, who replicated a mural (known as Vandal Eyes) by Joseph Tierney or “Rime” for the dress’s fabric. Rime sued for copyright infringement, falsification of copyright, unfair competition, appropriation of name and likeness, and negligence. The defendants, Scott and the brand Moschino, asserted that they were exercising their constitutional rights as a matter of public interest. The court found the dress qualified as public interest.
These cases reveal that courts tend to analyze cases regarding unsanctioned graffiti on the premise that such works are copyrightable, though they have not held explicitly that such works hold valid copyrights. They have focused on copyright defenses in dismissing causes of action, rather than the defense of illegality. Courts have had ample opportunities to rule that unsanctioned art is not copyrightable and thereby end the debate, but they have chosen to analyze the cases as copyright infringements and dismiss or allow them to continue on grounds of statutory copyright law. This widespread judicial approach gives weight to the argument that unsanctioned graffiti is copyrightable.
Arguing in favour of the rationale of illegality to exclude graffiti works from copyright protection, Professor Eldar Haber compares graffiti to child pornography and argues that the law should not condone such works. He still opposes copyright protection because “the law should not aid in creating social injustice,” whether that be protecting the pornographic photo of a child or a mural vandalizing a wall. However, such an argument holds ground only when the contents of the graffiti artwork itself are illegal, such as a mural having pornographic content, and not just the act of depicting perfectly legal contents in the artwork. In contrast, the act of painting on a wall without the owner’s permission is not tied to the intellectual property in the work, where the content itself is not illegal. If the same were painted on a canvas it would be legal, but a pornographic photo of a child printed on any medium is illegal. The content of the artwork is disconnected with the criminal activity.
2. Defense under the doctrine of unclean hands
In the Villa case discussed above, Pearson’s illegality defense echoes the doctrine of unclean hands. This doctrine is essentially a relief in equity that no one should benefit from one’s crimes, and that one cannot seek protection under the law if one has acted wrongly with respect to the matter of the complaint.
It can be argued that the graffiti artist during the creation of the unsanctioned graffiti has committed the offence of defacement of property and therefore, is in violation of the state laws for prevention of defacement of property [1]. Also, the graffiti artist may have committed an offence of trespass and a tort against the owner of the property. On account of such violations, it can be argued that the graffiti artist is precluded to initiate copyright infringement action against a party since the artist has approached the court with unclean hands. Suppose a defendant appropriating the unsanctioned graffiti takes the defence of unclean hands when sued by the graffiti artist for copyright infringement. Now, if the court finds that graffiti artwork in itself is capable of enjoying copyright it will make the defendant an infringer. The defence of unclean hands is a defence in equity and a “defence in equity, is available only to a party to a litigation who has acted fairly and honestly and not to a person who is guilty of violating the law or infringing or usurping somebody else’s right and such person cannot by setting up such a defence”. It is important to note that The Delhi High court in the case of Tekla Corporation & Anr. Vs. Survo Ghosh & Anr has expressed that “I have wondered whether such an equitable defense can be said to be open to an infringer of copyright. Can a defendant, who is himself violating the right of the plaintiff, be permitted to say that though he is in violation but the plaintiff is not entitled to take action against him because the plaintiff is also in violation of some other law or has asserted a right beyond what he is entitled to. In my opinion, no”. A party seeking equitable relief must come to the Court with clean hands and which doctrine of unclean hands can also preclude a defence.Therefore, the defense of unclean hands would fail, if firstly, the graffiti work is found worthy of copyright and secondly, the defendant is found violating such copyright.
3. Extending Copyright to graffiti works in under an Incentive-Based Theory of IP
In an incentive-Based theory of IP, copyright as necessary to provide an incentive for authors to create and disseminate works of social value. The Indian IP regime accepts the incentive-based theory as the primary justification for copyright. The immediate effect of the Indian Copyright law is to secure a fair return for the authors work but the ultimate aim is, by this incentive, to stimulate artistic creativity of general public good. In Sony Corp. of America v. Universal City Studios, Inc., for example, the Supreme Court of USA stated that copyright’s monopoly privileges are “intended to motivate the creative activity of authors and inventors by the provision of a special reward.”The incentive-based argument asserts that if free-riders are allowed to appropriate another’s work then authors will cease to create. As applied to the graffiti movement, copyright protection is necessary to encourage artists to continue creating graffiti without the fear of “free-riding copyists” such as Pearson Education, Green Day, and Moschino.
In the context of the graffiti movement, reputation is a key component of a graffiti artist’s identity and work. In the cases discussed above several artists argued the resultant appropriation of their work harmed their reputation. In the case of Katy Perry’s dress, Rime argued that he was accused of “selling out” by appearing to have endorsed Katy Perry and a high-end fashion collection, which harmed his credibility in the art community. Harm to reputation can disincentivize an artist to continue his work.
The problem of using incentive theory to justify copyrighting graffiti art, though, is that in many instances, the given copyright protections would be incentivizing an illegal activity. Celia Lerman, an IP scholar from Columbia Law School and Universidad Torcuato Di Tella (Buenos Aires, Argentina), argues that extending copyright protection to unsanctioned graffiti would not encourage illegal activity because it would help artists to view the law as their ally. For example, under the United States copyright regime, authors receive copyright protection for their qualifying works, regardless what motivated the author to create; it is not necessary that every work serves the Copyright Clause’s goal, but rather that the overall system does.
Professor J A L Sterling in his book International Copyright Law has stated that in copyright law distinction is made between the work as conceived in its immaterial representation and material embodiment of the work. There are in general two separate items of property namely property in the work and property in the material embodiment. The principle of the distinction of the work and its material carrier or support applies in Copyright law. Accordingly, copyright protection is concerned with the intangible work, which is protected independently from its physical embodiment. The wrongdoing is irrelevant to the copyrightability of the work because copyright law does not impose negative consequences for illegal acts, and the illegal acts should be addressed under civil sanctions and criminal penalties. Thus, the exclusive rights under a copyright, are distinct from ownership of any material object in which the work is embodied. The illegality of that physical embodiment, then, should not affect the copyrightability of the intangible work.
Conclusion
The list of copyrightable subject matter is ever expanding and copyright law is not meant to deny protection to new art forms and create inefficiency.An argument to exclude copyright protection for graffiti lacks merit when taking into account the growing legality and acceptance of this art form. Protecting illegal graffiti seems intuitively wrong but when an unsanctioned graffiti work meets with the minimum requirement for copyright protection it should be accorded protection despite its illegality. After all, copyright assigns rights over the intangible aspects of the work only; it does not exclude works that have been tangibly fixed in an illegal manner. Moreover, protection graffiti may incentivize graffiti artists to create more legal works. Bansksy has famously remarked that “Copyright is for losers”. But as Lerman puts it “even if that is the case, graffiti artists should still have the option to be losers”
[1] Section 3 of The Delhi Prevention of Defacement of Property Act, 2007 provides for penalty for defacement of property.“Whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purpose of indicating the name and address of the owner or occupier of such property, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thousand rupees, or with both. (2) When any offence is committed under sub-section (1) is for the benefit of some other”
