Street graffiti, which relates to the artwork created on public or private spaces, usually illegally, by graffiti artists using different styles such as spray-paint graffiti, street art and stencils is a subject of great controversy in the modern-day legal regime. Off late, the rising concern regarding preservation of graffiti art and its protection under copyright law emerges from its unauthorized use, reproduction and replication. That is, in recent times, street graffiti is being copied and reprinted on clothing, posters or advertisements by various retail fashion giants, and exhibited and sold in auction houses and galleries with little to great appropriation on the graffiti work so as to benefit economically without according any recognition to the original artist.
The questions that arise in this context are whether copyright protection shall be extended to such artists who affix their work on the property of other without their consent and in an illegal fashion? Shall they be allowed to restrain any person unauthorisedly using their work and should the law allow the institution of such a suit? What rights are available to such street graffiti artists and by what virtue are such rights accorded to them? Interestingly, though these questions seem to have different answers to them, they are invariably and intricately related.
Prima facie various jurisprudential theories like utilitarianism, labour theory, personality theory, social planning theory, instrumentalism, economic rights theory etc., seem to surround the chain of thought in seeking the answer to these questions, the author seeks to argue that the courts answer them analytically from a specific lens of the personality theory as propagated by Kant and Hegel. The personality theory focuses mainly on the moral rights of the author that derive from the legal embodiment of the personhood or deep connections which reflect an author’s sense of self and personality in the work. These moral rights give authors control over “whether, when, by whom, and in what manner their work is presented to the public.” Hence, it encompasses an author’s rights to be credited for their work, to protect the integrity of their work, to determine when to publish a work, to demand that a work be returned, to protect the work from excessive criticism and to collect a fee when a work is resold. These moral rights can therefore be categorised as ‘non-economic’, ‘non-proprietary’, or ‘personal’ rights accorded to the creators of the work.
It is argued that the inherent lacuna in the copyright regime is that copyright is increasingly construed as an economic right by law-makers and law-adjudicators whilst it is more in the nature of a non-economic right of the author. Hence, where a more profound meaning should be accorded to the moral facet to the work of the author, the contemporary industry culture recognises merely the economic facet of the work. According recognition to the moral facet of the work implies that the society, as a beneficiary of the work, should not just merely compensate the author in bare monetary terms but should also seek to extend the reward to the author for his personhood invested in the work. Hence, here, the reward should extend much beyond the material gains and aim to encompass, inter alia, the social recognition along with droit de divulgation (the right of publication), droit de paternité (the right of paternity), and La droite de I’intégrité (the right of integrity).
From this lens, it is important to study the rationales that surfaced in some of the recent examples of illegal use of street graffiti and art. Some of these include, the copying of the mural painted by a graffiti artist based in Brooklyn onto Moschino’s apparel, appropriation of Miami’s street artist David Anasagasti’s work by American Eagle Outfitters, featuring of mural painted by the group of artists known as Tats Cru in the Fiat 500 commercial with Jennifer Lopez, appropriation of paintings from various private properties from Buenos Aires by Peruvian artist José Carlos Martinat in his exhibition, etc. For instance, in the most popular case of Creative Foundation v. Dreamland where the dispute primarily concerned about who owns the wall on which the Banksy mural was placed, the judge only briefly mentioned the that the person who created the artwork – i.e. anonymous street artist Banksy presumably owned the copyright in the work by virtue of his moral rights while analysing the other allied issues that surfaced. These included, is there a copyright in street art? And if so, to what extent can artists use that right to protect and control their artworks? If Banksy wished for his work to remain on the street, and not be sold in a museum in Miami, is there anything he can do to enforce that wish? Why might street art be seen as less deserving of protection than other forms of art? Can multinational companies attempt to deny creators of artworks the right to profit from further use of those artworks? The court simply held that Bansky was entitled to reap his economic interest by getting a proportion of the proceeds from the sale of his work as provided by the Artists Resale Right which is merely an ancillary right (neighbouring/related right) and not strictly a copyright.
This indicates that even when the issues surrounded more around the issue of moral or personality rights of the author, major or equal accordance was not provided to analysis of such non-economic rights. Rather, the elaborate discussion focussed more on whether the court shall be granting economic benefits to the author, thus only recognising economic or monetary aspects of the work.
Similarly, a 2018 New York case granted almost $7million in damages to 45 street artists after their artworks (placed with permission) were whitewashed by owner of the buildings that the artworks were painted on. This monetary compensation was granted only by virtue of Visual Artists Rights Act 1990 (ancillary right), and not under a copyright. Thus, another lacuna is that though copyright by virtue of its very nature grants legal rights in the form of economic and non-economic rights, the courts only seem to recognise mere ancillary rights than actually acknowledging the personality or moral rights. This happens regardless of personality or moral rights being of primary consideration in the subject matter of the case.
Additionally, in cases such as the flat 500 commercial etc., the artists of the work generally agree to either an agreement regarding the use of the artwork or graffiti by taking compensation and reward for their labour or settle the disputes out of court before the courts can issue any substantive decision on the case, leaving the questions unsettled. Therefore, the third lacuna is the heavy reliance on the labour theory as propounded by Karl Marx while still seeking to answer that by virtue of what rights can the artists protect the artistic vandalism. This means that the authors are merely compensated or paid for the fruits of their labour which they invest while creating something of value thereby completely overlooking the moral rights which arise out of their personhood. Hence, even though the artwork so created by investment of the authors labour reflect a twofold and an intimate relationship between the artwork and the community setting, only a fair return on labour is provided. The intimate relationship is because the artwork and the community setting in which the artwork is placed reciprocally influence each other as the street art (work) is a reaction to the context of the authors social surroundings.
Hence, an analysis of such recent examples indicates that the contemporary jurisprudence which studies the validity of copyright protection to illegal street graffiti only recognises that copyright protection needs to be extended to the authors of the work on the basis of utilitarianism or labour theory. In essence it means that the jurisprudence on copyright heavily recognises that copyright protection is necessary only to provide incentives for creative intellectual efforts for benefit of society and for rewarding commensurate to the services rendered due to one’s labour, the reasonings on which the decisions are based on tell a different story. The courts provide the artists with the right to control public disclosure of their works, withdraw works from public circulation if need be, receive appropriate credit for their creations, exclude others from claiming authorship of the work, and protect work against mutilation/destruction. This indicates that the courts while seemingly apply the theories of utilitarianism, labour, economic rights etc., also necessarily take into consideration the moral or personality rights of the authors and then award any such economic or ancillary rights so to say. Thus, it is important to realise that the jurisprudence of copyright primarily bases itself on the personality rights theory inclusive of moral rights of the author as provided in the Berne Convention and recognised by the Indian Copyright Law, even though the same is not explicitly visible.
 Yoo, Christopher S., “Copyright and Personhood Revisited” (2012). Faculty Scholarship. Paper 423. http://scholarship.law.upenn.edu/faculty_scholarship/423
 Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 HARV. L. REV. 554, 557 (1940)
 Neil Netanel, Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evaluation, 24 RUTGERS L.J. 347, 359–61, 374–77 (1993).
 Jessice Meindertsma, Theories of Copyright, The Ohio State University Libraries, (2014).
 Akhil Prasad and Aditi Agarwala, Copyright Law- Desk Book: Knowledge, Access and Development. Universal Law Publishing, LexisNexis, (2009)
 Celia Lerman, Protecting Artistic Vandalism: Graffiti and Copyright Law, N.Y.U. Journal on Intellectual Property and Entertainment Law, pp. 7/44, Vol. 2:295, (2015).
 Creative Foundation v. Dreamland Leisure Ltd,  EWHC 2556 (Ch)
 Dr Aislinn O’ Connell, Is Street Art Subject to Copyright?, WomenAreBoring (2018). Available at https://womenareboring.wordpress.com/2018/07/05/is-street-art-subject-to-copyright/#_ftnref35.
 Supra note 7.
 William Fisher, Theories of Intellectual Property, New Essays in the Legal and Political Theory of Property, Cambridge University Press, (2001).
 Supra note 5.
 Supra note 7.
ABOUT THE AUTHOR
Mahima Zamindar, is a 3rd year law student at Maharashtra National Law University, Mumbai Maharashtra. Her key area of interest lies in the fields of Intellectual Property Law, Competition Law, Public International Law, Cyber Law and Sports law. She is also associated with NGOs trying to uphold and work towards securing children’s basic human rights.
In Content Picture Credit : Artlaw Online