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Should Copyrights Protect Graffiti?

INTRODUCTION:

Art is a versatile form of communication that talks louder than words. For years now, India has commonly been associated with murals much before the concept of street art or graffiti had become popular among Indian artists. It’s only recently that the concept of graffiti began to develop in the west mostly in urban settings. Indian culture has always been associated with indigenous artwork including the one on the streets but why is it that such artworks are barely registered as ‘artist works’ under copyright law?

WHAT IS STREETART?

Street art is popularly known as graffiti or ‘vandalism‘. Why the term Vandalism? Is it because of the rebellious act of putting an extreme perspective or as the textbook definition says deliberately destructing public surface due to a rage of annoyance for whatever reason? Graffiti when done does not always have an agenda, it is an outspoken art-form which uses people or abstract as inspiration usually done on lampposts, subways, walkways, dividers, seats to simply convey a message unfiltered. 

The essence of urban street art and graffiti has been evolving at a great pace keeping in mind the developing priorities. The art portrays a symbolic inspiration on what’s happening around the world. A great form of art comes from a desire of leaving their mark on walls. It all first started in New York City when it saw a spray-painting blast inspired by rap, hip-hop punk as a symbol for their private meetings.[1] Graffiti has evolved from people’s desire of leaving a mark to a symbol of the hip-hop culture to being recognised as urban art and finally being recognised as elaborate masterpieces.

Besides graffiti’s aesthetic articulation, its expression is its privilege. Graffiti’s days of it being perceived as public nuisance are over. These days’ graffiti is having a renaissance and being used by fashion labels, major corporations, ad campaigns, etc. It has now become a marketable commodity which it rarely was. Graffiti is one of the fastest growing artistic movements as its progressive nature is seeking a lot of attention and giving birth to artist whose work is almost breath-taking. However, graffiti’s legal status as an artform has created a lot of confusion in the minds of many.

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THE COPYRIGHT ACT, 1957:

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works, cinematograph films, sound recordings, etc., from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work. Those rights include the right to replicate the work, to get ready subordinate works, to appropriate duplicates, to execute the work and to show the work freely.

Copyright laws are enacted with necessary exceptions and limitations to ensure that a balance is maintained between the interests of the creators and of the community to strike an appropriate and viable balance between the rights of the copyright owners and the interests of the society as a whole, there are exceptions in law. Many types of exploitation of work which are for social purposes such as education, religious ceremonies, and so on are exempted from the operation of the rights granted in the Act. Copyright in a work is considered as infringed only if a substantial part is made unauthorized.

GRAFFITI AND COPYRIGHT LAWS:

Graffiti is a significant form of art meriting copyright like other art forms. There are lot of a graffiti artists that have got recognised through exhibitions and events and some shunned mainstream publicity so the last thing they wanted was to get recognised or openly claim copyright or be the next muse of commercial use. But a cultural attitude towards Graffiti has changed. The underground art scene is starting to boom, and the law is struggling to catch up with the change in taste and culture, especially when it comes to the issue of an ephemeral artform deserves the protection of the copyright law. The hard truth is that graffiti is denied any assurance under the copyright act because its creation is authorised either on public or private property resulting in trespassing which is illegal.

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Graffiti has caught the eyes of several High-profile companies who are using the art for their benefit without giving the artists the due credit. Even though they have sanctioned permission on the property, but the artwork is unsanctioned resulting in a legal dispute. InH&M v. Jason Revok Williams,[2] a graffiti artist Jason spray painted on handball court in Brooklyn, which was later used by H&M in its ad campaign, Williams responded by sending a cease and desist letter to H&M  for breach of copyright and unauthorised use of his work. Later H&M filed a suit asking the court to declare that Williams work had no copyright as graffiti is illegal and comes under vandalism therefore it can be exploited for commercial use. The rationale behind this was the Doctrine of Unclean Hands, (the doctrine believes that plaintiff cannot be offered remedy and gain profit because they have acted in bad faith.) Hence if graffiti is unauthorised it can be subject to misappropriation.

Besides the High-profile, the question arises if property owners with graffiti on their property can demolish that work? Can they paint over it and use the property for some other work? What will be the consequences? Will they be sued by someone claiming to be a copyright owner of that artwork? How do property owners and companies prevent themselves from falling victim to this type of litigation and they protect themselves from a copyright claim? Most of these questions could be answered if IPR law could protect Graffiti as an artform.

For a work to be considered copyright-able it needs two things: the work should be original and be fixed into any tangible medium of expression. In the author’s opinion, Graffiti is original, expressive and tangible. Graffiti is being used as a modern art almost everywhere you go. The art created on streets is as important as any art in the museum. As seen in the H&M case, it claimed that the artist work is not considered art under the doctrine of Unclean Hands. Nowhere under the Copyright Act, 1957 says that doctrine should be the basis of denying copyright unless it is obscene.[3] The nature of the legislature is to protect broadest range of expressions, thus the court ruled out the doctrine and henceforth it is not applicable and the art should not be used by anyone just because it’s freely available and if the art is used commercially they should face the consequences of infringement of copyright. 

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CONCLUSION:

An artist uses his heart and soul in creating an art, somewhere the integrity of the artist as well as the art should be protected. It’s imperative that artwork once destroyed cannot be altered. This devastation of their work should be anticipated under the Copyright Act, 1957. Graffiti artists should be sanctioned these rights so as to secure the rights of the craftsmen.


[1]  See CANVAS: A Blog by SAATCHI ART.

[2] Kettj Talon, H&M VS Jason Revok Williams and the problem of street art, NSS MAGAZINE (Mar.17, 2018), https://www.nssmag.com/en/fashion/14226/h-m-vs-jason-revok-williams-and-the-problem-of-copyright-in-street-art/image:128528#.

[3] Mitchell Brothers Film Group v. Cinema Adult Theatre Film Group, 604 F.2d 852 (5th Cir. 1979).


Cite this article (The Bluebook 20th ed.)-

Priyanka Shahani, Should Copyrights Protect Graffiti?, Ex Gratia Law Journal, (November 14, 2020), https://exgratialawjournal.in/blawg/ipr/should-copyrights-protect-graffiti-by-priyanka-shahani/.

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Author

Priyanka Shahani
Student - K C Law College, Mumbai