From Plagiarism Today:
When graffiti artist Jason Williams, better known as REVOK, noticed some of his work appearing in an ad campaign for H&M, he did what many artists would do: He sent a cease and desist letter.
H&M, rather than ceasing and desisting, responded by filing a lawsuit against Williamssaying that his work can not be copyright protected. According to H&M, since Williams’ art is a “product of criminal conduct” Williams has no copyright at all in the work.
. . . .
Much of this is owed to the fact that street art has been pushing its way into the mainstream. Though the process has been going on for decades , in recent years artists such as Banksy and Shepard Fairey have become household names. With mass appeal comes inevitable commercialization and that commercialization has forced many graffiti artists out of the shadows and into the courtroom.
But this raises a difficult issue: Where does graffiti fall when it comes to copyright? Can it be protected at all? If so, what can artists do to prevent the destruction of their work? What about commercial use of their work?
. . . .
When it comes to this kind of art, there are three terms commonly used to describe it: Street art, graffiti and vandalism
For the purpose of this article, street art is an umbrella term for nearly all public art, permitted and illicit. This includes commissioned murals, graffiti and even public art displays.
Graffiti is simply illicit public art, usually in the form of spray painted murals writing or drawings. It can be extremely simple or complex, but they don’t have advance permission from the property owner, even if they are welcome after the fact.
Finally, vandalism is any willful destruction of property. Many people consider graffiti vandalism, many do not. We’re going to avoid this term for this reason.
. . . .
Copyright law is pretty clear. For a work to qualify for copyright protection it only needs two things:
- Have a modicum of creativity
- Be fixed into a any tangible medium of expression.
Interestingly, the law even includes the word “any” in its language, further emphasizing that the term is meant to be as broad as possible.
Graffiti, without a doubt, meets both of those qualifications. It is creative and a wall, whether it’s legal or not, is a tangible medium of expression.
The argument against copyright protection for graffiti comes from a very different angle.
When the fashion designer Moschino and their creative director Jeremy Scott were sued by street artist Jeremy Tierney (AKA: Rime), they argued it was the criminal nature of graffiti that made it devoid of copyright protection.
In an argument that literally compared graffiti to the Black Dahlia murders, they asked whether or not the Black Dahlia murder could hold the copyright in their “art”, namely the rearranging of body parts following a ghastly murder.
The idea here is the doctrine of unclean hands. It basically states that no person should benefit from their crimes. Obviously, a graffiti artist getting copyright protection in their work would be a huge benefit and many argue that precludes copyright protection in illegally-created art.
. . . .
Pearson attempted to get the lawsuit dismissed by claiming the illegal nature of the work made it ineligible for copyright protection.
The judge declined to do so, saying that the illegality of the art was fact-dependent and not appropriate to address at that stage. Unfortunately for those interested, before the court could rule on it, the two sides reached a settlement.
. . . .
[I]n a 2013 case involving graffiti appearing in a Green Day concert video the Ninth Circuit Court of Appeals found that the use of the art was a fair use. While that’s still a defeat for the artist, one can’t find fair use if the work is not protected by copyright.
. . . .
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.
. . . .
Even if we wholly accept the copyrightability of graffiti, that doesn’t mean it receives all of the same rights as other forms of street art.
One example of this is the Visual Artists Rights Act (VARA), which is the United States’ attempt to introduce elements of moral rights into copyright law. One of the components of VARA is that author of works of “recognized stature” can prohibit intentionally or grossly negligent destruction of their work.
However, courts have not been kind when applying VARA to graffiti.
Link to the rest at Plagiarism Today
PG would expect some interesting arguments in a case in which one illicit graffiti artist created a copyrightable work without permission of the owner of the property and then a second graffiti artist created another work without permission that covered the first, effectively destroying it.
Or if the second graffiti artist was hired by the building owner to create the second work.
PG has suggested a rabbit hole from which there is no return! 😀
Intellectual property rights should not be able to trump physical property rights.
Here’s a more in-depth analysis of the five points case and explores why it is such a bad idea for artists and for physical property owners
https://www.techdirt.com/articles/20180219/11142039268/court-destroys-future-public-art-installations-holding-building-owner-liable-destroying-this-one.shtml
Presumably, the issue at play is akin to squatter’s rights. By not acting to impede the artists, the owner gave up some of their rights to the property. This isn’t completely unreasonable. There needs to be some limit on the degree to which an owner can neglect a property and still have a claim on it. This is definitely a questionable application of that notion, but this should have nothing to do with copyright, which protects IP, not the original creation.
They’re not “artists.” They’re vandals.
“Oh, you left your car in the parking lot at Target. It was there for more than an hour, so since you weren’t actively defending it, we artified it for you! And in some places, the law will let us sue you if you clean it off.”
TRX,
My point was that this shouldn’t have anything to do with copyright and that it seemed more likely that it was a property rights issue.
As for the Target parking lot, if you leave your car there for a month, much less over 20 years, the period that 5pointz remained derelict, then it is highly improbable that your car will be there when you go looking for it.
They can call it “street art” all they want, but if its practitioners vandalize my property, they can’t object when I demonstrate my “performance art” upon their persons.
1) Get vandalised.
2) Take pictures.
3) If the pictures ‘weren’t bad’, sell as art.
4) If the ‘artist’ comes back claiming you’re selling ‘their’ art take them to court for the vandalism and cleanup costs.
(The vandal can’t claim one without admitting the other. 😉 )
Sorry, me missed one.
2.5) Remove/clean up vandalism after reporting/filing report.
The Copyright Act doesn’t require a work to be created without violating any laws… so it seems obvious to me that even graffiti has copyright protection, and no one can reproduce it without the creator’s permission.
Anyone who wants to use the work of the graffiti artist as an edgy backdrop for their latest fashion line should pay. But then the artist be receiving the proceeds from crime, and could be sued by the building owner or the government for it.
If I were a graffiti artist, I would paint the work on a wall at home, photograph it and publish it online before putting it on a building. Then, the big work an illegal reproduction of the legal, unarguably copyright protected work.
Technically, a faithful duplicate of the original is considered the same as the original in the US. I’m sure that this has been explored for all applications, though, so there are precedent-setting legal battles yet to be fought.
If US law were to be consistent on the issue, the image should be protected in any case. The original copy should belong to the owner of the property it is attached to. Rights to reproduction should belong to the artist. The artist should be liable for damage to the property owner if it is deemed they caused any. This shouldn’t be hard.
Correction: Faithful duplication probably hasn’t been explored for all applicable situations.
The gist of my post is that copyright and ownership of an object upon which the copyrighted material is printed are two different things. This has been exhaustively resolved in court, so it doesn’t make sense why there is so much confusion about graffiti.
I can only guess that the irrelevant information, the criminal element of the production of the art, is misleading people into coming up with solutions they would not otherwise consider. Of course, defending one’s copyright might be entertaining when one’s only proof is graffiti on a wall, especially if it’s been painted over or demolished.
This makes so much sense. Yes!
I think you’ve nailed it.
This is actually an old argument. During the Victorian era, works that were considered indecent were not protected by copyright. Byron’s “Don Juan” was declared such, and that created a boomerang effect. Instead of the book coming out from one publisher at a high price point, it came out in multiple editions at multiple price points, making “Don Juan” in its various cantos and editions one of the highest-selling books of its time.