University responses to sexual violence on campus: comparing English & American approaches

by Erin Shannon, University of York

Although the United States has the infrastructure to respond to student disclosures of sexual violence, there seems to be little commitment to changing campus cultures that permit sexual violence to occur. If American universities have the infrastructure without commitment to institutional change, English universities have recently demonstrated a higher level of commitment to ending sexual violence with little infrastructure to do so.

What can we learn from a comparative framing of responses to sexual violence in universities?

Sexual violence in English and American universities is not a new phenomenon, yet its corresponding field of study is relatively new. Such scholarship dates back to the 1980s but has gained traction in the last decade, possibly due to several high-profile cases, national awareness-raising efforts including campaigns like ‘It’s On Us‘ and ‘I Heart Consent‘, and the rise of survivor-activist groups such as ‘End Rape on Campus‘ and ‘Know Your IX‘ in the United States and ‘Revolt Sexual Assault‘ in the United Kingdom. Despite this growth in mainstream media coverage and activist work, research on sexual violence in universities remains limited: England only began investigating it in 2010 at the urging of the National Union of Students (NUS, 2010) and while the United States has a longer record of studying the subject, the existing literature often overlooks structural issues in favour of more individualised studies of perpetrator behaviour or the impact on victims/survivors (Phipps and Smith, 2012, p. 358). Comparative studies on sexual violence in universities are even rarer, as a single study exists that analyses campus crime rates across England and the United States (Fisher and Wilkes, 2003) and this only briefly touches on sexual violence.

Looking beyond scholarship, current institutional responses to sexual violence in American and English universities fall into one of two polarised approaches: a heavily structured framework (e.g. United States) versus a culture change model (e.g. England). While these models are not mutually exclusive, universities currently treat them as such. A comparative examination of American and English universities’ responses to sexual violence highlights that both approaches are necessary, yet neither on its own is sufficient to properly respond to sexual violence in universities. On a practical implementation level, the necessity of a comparative study becomes clear: Though England does not currently have a national response framework for sexual violence in universities, Universities UK (UUK) noted in its (2016) Changing the Culture report that it is working towards creating one, and, in doing so, is studying established structures—such as the United States’ Title IX—for potential adaptation (p. 4). We must therefore understand the existing responses in both countries if we are to seriously consider policy borrowing.

Before we can discuss what this best practice sharing could look like, we need to understand how we arrived at this discussion. Policy borrowing implies a level of sameness between two contexts, and American and English universities are indeed similar. The student make-up in both countries is comparable: In the 2015-2016 academic year, 40.5% of 18-24-year-olds in the United States and 49% of 17-30-year-olds in England attended university (National Center for Education Statistics; Adams, 2017). The majority of these students are white and female (National Center for Education Statistics; “Higher Education Student Statistics: UK, 2016/17,” 2018). Victimisation rates in both countries are also comparable: Though more data exists about the prevalence of sexual violence in American universities than in English universities, the available research does illustrate similarities. The (2015) Association of American Universities (AAU) Campus Climate Survey on Sexual Assault and Sexual Misconduct found that 21.2% of final year undergraduate students experience some kind of attempted or completed sexual assault prior to graduation (Cantor et. al., p. xiv). The most vulnerable of these were female students and “TGQN” students— “transgender male, transgender female, genderqueer or non-conforming gender, questioning, not listed, and ‘decline to state’” (Cantor et. al., 2015, p. vii)—who experience sexual violence at rates of 33.1% and 39.1% respectively (Cantor et. al., 2015, p. xiv). In England, the (2010) Hidden Marks report found that, of its respondents, one in seven female students experienced a serious sexual or physical assault (NUS, p. 3, 11) and 25% experienced a form of sexual violence while in higher education (NUS, p. 16). Another constant across both countries is the perpetrator profile: The most frequent perpetrators of sexual violence in universities are not “‘masked strangers’” (Hartmann, 2015, p. 291), but rather (ex-)boyfriends, friends, classmates, or acquaintances (Fisher et. al., 2000, p. 17; Krebs et. al., 2007, p. xviii). The Hidden Marks report further revealed that the level of intimacy the perpetrator had with the victim/survivor varied across types of violence: The more severe the assault, the closer the relationship between them (NUS, 2010, p. 19).

Despite these similarities, American and English universities respond differently to student disclosures of sexual violence, and these responses represent either side of the structured framework versus culture change binary mentioned earlier. The United States has a relatively standardised federal approach, while England is witnessing many different responses by individual universities. In addition to the structural difference between the countries, there appears to be a value difference as well. Although the United States has the infrastructure to respond to student disclosures of sexual violence, there seems to be little commitment to changing campus cultures that permit sexual violence to occur. If American universities have the infrastructure without commitment to institutional change, English universities have recently demonstrated a higher level of commitment to ending sexual violence with little infrastructure to do so.

The American Framework

The framework that the United States has in place consists of two key federal directives, Title IX and the Clery Act. Title IX prohibits any discrimination based on sex in education and the (2011) Dear Colleague Letter (DCL)—updated implementation guidance from the Obama administration—explicitly situates sexual violence as an issue covered by this: “Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX” (Ali, p. 1). The DCL mandates the following: Universities must publish a non-discrimination notice that has the contact information of the Title IX Coordinator in an easily accessible place, must assign the responsibility for Title IX compliance to at least one employee, and must create and disseminate their procedures for sex discrimination complaints (Ali, 2011, p. 6). It discusses how student conduct investigations should be carried out by detailing what standard of proof is acceptable (preponderance of the evidence or “more likely than not” as opposed to a higher standard such as “beyond a reasonable doubt”); that the complainant (alleged victim/survivor) and accused (alleged perpetrator) should have equal opportunity to present evidence, though they should not directly question each other; that investigations should not take longer than 60 days; and that universities should have an appeals process in place for both parties (Ali, 2011, p. 10-12). Should a university fail to respond appropriately and quickly to a report of sexual violence, the Office for Civil Rights can revoke the university’s federal funding (Ali, 2011, p. 16). In addition to Title IX, universities must adhere to the Clery Act, which requires them to log information such as the “‘nature, date, time, and general location of each crime;’” release statistics of crimes that happen adjacent to or on campus; send out ‘timely warnings’ about immediate and/or ongoing threats to campus safety; and create an emergency response strategy (Griffin et. al., 2017, p. 403-404).

Critics of the American response framework, particularly Title IX, often point to the lack of compliance universities exhibit and its punitive, legalistic qualities. When measuring the efficacy of Title IX in responding to sexual violence, what is often actually being measured is how successfully schools comply with guidance rather than how successfully they address sexual violence. Compliance, however, can still speak to how universities (de)value student victims/survivors; it’s therefore worth noting that, despite these improved procedures, there were still universities in 2015 that lacked a basic Title IX policy (Richards, 2016, p. 20). This compliance culture—or lack thereof—illustrates a previously mentioned issue with the American response to sexual violence in universities: Tani (2017), citing Leon’s study of the 2014 Office for Civil Rights investigation of University of Delaware, points out that American universities may have the structure in place to facilitate effective responses to sexual violence, yet limited or no institutional commitment to cultural change (p. 1890). Furthermore, beyond failure to comply with the system lie issues with the system itself. These critiques point to how such a punitive model results in a ‘zero-sum game’ between the rights of the accused versus the rights of the complainant and how the policy’s rape mythology imported from criminal law hurts victims/survivors (Hartmann, 2015, p. 314, 294; USVreact, 2018, p. 9).

The English approach

Conversely, the recommendations set out in UUK’s (2016) Changing the Culture report focus on facilitating cultural change through the creation of streamlined reporting, recording, and support processes. The Changing the Culture report highlighted that some universities are responding, but these responses are not centralised and there is not yet an outlet for sharing best practice across the UK (2016, p. 5). Based on responses from 60 of their member universities, UUK found that the majority did not have dedicated policies in place to respond to sexual violence, as this was often included under an umbrella policy for harassment and bullying (2016, p. 27). Under-reporting of sexual violence and the lack of reporting and recording infrastructure were common issues among respondents (UUK, 2016, p. 28). Despite the absence of internal reporting resources, however, many universities had developed working partnerships in their local communities with police and crisis centres (UUK, 2016, p. 29). UUK formed recommendations based on recurrent themes in university responses which include: achieve senior leadership buy-in, implement an institution-wide approach, work to prevent violence through forming a zero-tolerance culture and using bystander intervention training, create a system to centrally record all reports and make sure that there is a clear path to disclosure and support, create or strengthen partnerships in the local community (NHS, rape crisis centres, etc.), and ensure best practice sharing (2016, p. 58-59).

While Phipps and Smith (2012) caution us against “mobilising simplistic dichotomies” (p. 366) in comparing English and American responses to sexual violence in universities, the themes of infrastructure and commitment offer an opportunity to understand why two countries with relatively similar student make-up and rates of violence have taken such different approaches. The United States may have a developed infrastructure for response, yet the presence of this framework and the federal sanctions it can impose then make universities more concerned with compliance than with addressing and redressing sexual violence. On the other hand, without national legislation, England has the opportunity to discuss what supporting victims/survivors and preventing sexual violence looks like without universities facing national sanctions if their response does not fit a certain mould. The English guidance generated does not fixate on infrastructure aside from what will help students—easily accessible reporting and support pathways. In reviewing the American and English systems, we come to understand that merely having formal structures in place to respond to sexual violence in universities does not lead to broader cultural change, and that lacking standardised policies does not mean universities are not working to end sexual violence. The absence of standardised procedures in England may contribute to issues of accountability when universities act negligently, yet the United States shows us that the mere presence of a uniform response strategy does not guarantee that all universities will implement this even under the threat of losing federal funding. We then must grapple with the idea that change may not be best achieved through the creation of punitive umbrella policies that aim to foster compliance out of fear, rather than compassion for student victims/survivors. As someone who was heavily involved in Title IX activism throughout her undergraduate education in New Jersey, this idea has not been easy for me to confront.

What can we learn from this?
What then can we learn from a comparative framing of sexual violence response in universities? I am still very much in the process of finding out. The preliminary findings from my literature review suggest at the very least that a comparative framing would help us envision radically different options for response, that we do not have to remain committed to one way of responding because that is how it has been done. In a precarious moment for Title IX—thanks to Secretary of Education Betsy DeVos buying into the mythology of rampant false accusations (McNamara, 2018; “False Reporting Overview,” 2012) and subsequently making it more difficult for victims/survivors to find justice (United States Department of Education, Office for Civil Rights, 2017)—it is now more important than ever for Americans to remember that there are possibilities for achieving justice beyond a system that can be weaponised against the very people it was designed to protect. It is also important for England, in working towards a national response framework, to take into account the critiques of the United States’ system when considering it for possible adaptation. Ultimately, it is my hope that my doctoral thesis will help to identify how universities in the United States and England may engage in policy borrowing to better support university student victims/survivors of sexual violence.

 

References

Adams, R. (2017, September 28). Almost half of all young people in England go on to higher education. The Guardian. Retrieved from http://www.theguardian.com/education/2017/sep/28/almost-half-of-all-young-people-in-england-go-on-to-higher-education

Ali, R. (2011, April 4). Dear Colleague Letter.
Cantor, D., Fisher, B., Chibnall, S., Townsend, R., Lee, H., Bruce, C., & Thomas, G. (2015). Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct. The Association of American Universities. Retrieved from https://www.aau.edu/sites/default/files/%40%20Files/Climate%20Survey/AAU_Campus_Climate_Survey_12_14_15.pdf
False Reporting Overview. (2012). Retrieved July 11, 2018, from https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_False-Reporting.pdf
Fisher, B. S., Cullen, F. T., & Turner, M. G. (2000). The Sexual Victimization of College Women. National Institute of Justice. https://doi.org/10.1007/springerreference_223719
Fisher, B. S., & Wilkes, A. R. P. (2003). A Tale of Two Ivory Towers: A Comparative Analysis of Victimization Rates and Risks between University Students in the United States and England. The British Journal of Criminology, 43(3), 525–545.
Griffin, V. W., Pelletier, D., Hayden Griffin, O., & Sloan, J. J. (2017). Campus Sexual Violence Elimination Act: SaVing Lives or SaVing Face? American Journal of Criminal Justice: AJCJ, 42(2), 401–425.
Hartmann, A. (2015). Reworking Sexual Assault Response on University Campuses: Creating A Rights-Based Empowerment Model to Minimize Institutional Liability. Journal of Law & Policy, 48, 287–320.
Higher Education Student Statistics: UK, 2016/17. (2018, January 11). Retrieved June 14, 2018, from https://www.hesa.ac.uk/data-and-analysis/students/whos-in-he
Krebs, C. P., Lindquist, C. H., & Warner, T. D. (2007). The Campus Sexual Assault (CSA) Study (No. 0209487). National Institute of Justice. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf
McNamara, B. (2018, March 12). Betsy DeVos Said She Doesn’t Know Whether False Rape Allegations Outnumber Real Ones. Retrieved July 17, 2018, from https://www.teenvogue.com/story/betsy-devos-false-rape-allegations-outnumber-real-ones
National Center for Education Statistics. (n.d.). Fast Facts. Retrieved June 12, 2018, from https://nces.ed.gov/fastfacts/display.asp?id=372
NUS. (2010). Hidden Marks: A study of women students’ experiences of harassment, stalking, violence and sexual assault.
Phipps, A., & Smith, G. (2012). Violence against women students in the UK: time to take action. Gender and Education, 24(4), 357–373.
Richards, T. N. (2016). An Updated Review of Institutions of Higher Education’s Responses to Sexual Assault: Results From a Nationally Representative Sample. Journal of Interpersonal Violence, 886260516658757.
Tani, K. M. (2017). An Administrative Right to Be Free from Sexual Violence: Title IX Enforcement in Historical and Institutional Perspective. Duke Law Journal, 66(8), 1847–1903.
United States Department of Education, Office for Civil Rights. (2017, September). Q&A on Campus Sexual Misconduct. Retrieved from https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
Universities UK. (2016). Changing the Culture: Report of the Universities UK Taskforce examining violence against women, harassment and hate crime affecting university students.
USVreact. (2018). Training to Respond to Sexual Violence at European Universities: Final Report of the USVreact Project. Retrieved from http://usvreact.eu/wp-content/resources/USVreact_Report_2018_ENG.pdf

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Exploring Power, Sex and Knowledge in the Feminist Debate on Pornography and Sex Work

Screenshot_20180717-185056_Google

Venus with Drawers, by Salvador Dalí

by Caroline West, Dublin City University.

What counts as knowledge in the sex work debate amongst feminists? Who is permitted to be an expert? Who is heard the most in this discussion? Why does ‘my body, my choice’ apparently not apply to sex work?

These questions occurred to me while studying pornography during my masters in Sexuality Studies. I noticed a trend: the voices being heard in the debate were primarily those of white anti-porn feminists. This is reflected in mainstream media too, where most of the voices heard are the same – with the voices of those actually doing the work marginalised in favour of those campaigning against sex work. Of the voices of those who have direct experience in sex work, the women who report negative experiences appear more than those who report positive experiences. Looking at the feminist debate, we have seen feminist authors such as Sheila Jefferies completely dismiss the lived experiences of sex workers such as Annie Sprinkle and label them as ‘victims’, with the people who listen to them labelled as ‘mistaken’. When we consider that Annie Sprinkle has decades of experience in many different aspects of the sex industry, as well as achieving a PhD in human sexuality, we must consider the ethics of this framing. What are the ethics of framing someone as a victim when they do not feel that term reflects their experiences? Indeed, what are the ethics of insisting someone is a victim, while making a career of campaigning against their chosen employment? And what are the ethics of publicly excluding someone from expert status when discussing their lived experiences? When someone like Annie Sprinkle has such a wealth of experience, why does this experience not count as valid knowledge and why is it subjected to dismissal?

Ethics is further critical when we consider the terminology used in discussing sex work. Some feminists will argue that sex work is not a valid term, and claim it hides the issue of sex trafficking. These feminists will write sex work as ‘sex work’; the use of these sneer quotes deliberately situates the term in a state of ambiguity, outside the realm of acceptable language. However, the term was coined by a sex worker named Carol Leigh who used it to recognise the labour of the worker, rather than a focus on the consumer. The outright dismissal and denial of women to name their work and identity in a way that works for them, is a critical question of power and ethics in the feminist debate over pornography. Through my research with sex workers, I have come to understand it as a form of violence, specifically epistemological violence. This nuanced form of violence is when a person is excluded from the status of expert, and their knowledge dismissed as not ‘true’ knowledge. It is exclusion from ways of knowing.

For all the heated discussion about pornography, there is very little research on the realities of working in the industry. Often, anecdotes are used in place of large scale, ethical, sound research, and anecdotes that tell of negative experiences are promoted in favour of ‘non representative’ positive anecdotes’. Porn studies is a relatively new field of research, and often ideology is substituted for rigorous research. You could almost count on your fingers the numbers of studies that actually talk to women in the industry; studies that talk to men or trans people are even rarer. Yet we see plenty of headlines talking about the ‘realities’ of working in the industry, generally written by outsiders to the industry. In any other field of research, this would be unacceptable and poor research would be instantly dismissed. Perhaps research subjects like porn and sex is too ’icky’ for some, or too extreme, or too close to home.  I have had a number of women come up to me after presentations on my research and tell me that the women who told me they willingly engaged with the industry were wrong, and they didn’t in fact consent. I ask how they know this, about these women they don’t know and will never meet, and the answers are always the same : ‘no woman chooses to do that’. And they will refuse to listen, instead preferring to cling to their beliefs. Or they end the conversation with a curt ‘we will have to agree to disagree’, without listening to what I or my interviewees actually have to say. Other porn researchers have confided the same has happened to them. It’s a fascinating glimpse of the relationship between power, sex and knowledge, and how this relationship can violently exclude and contribute to stigma.

My research involved interviewing women working in the American porn industry, travelling to the AVN awards show in Las Vegas to conduct my interviews. This research project will be one of the few studies that looks at the nuances of stigma experienced by women working in the pornography industry, a sorely neglected area of research. Along the way, I’ve learnt so much about how power operates in this debate, and how exclusion and dismissal of a marginalised group of women is justified by factions of feminists who simultaneously proclaim ‘my body, my choice’ and ask us to believe women’s stories.  A PhD will only address so much, but there is a massive scope for improving scholarly research in this area. A new approach that favours methodologically sound research over ideology is very much needed; one that is inclusive and goes beyond the usual tired binary of looking at sex work as being either exploitative or empowering. This approach will allow the multitude of lived experiences in between these opposites to be discussed in a more holistic and ethical way. But we also need to become more reflexive as researchers, and ask ourselves why we are doing this research; if the research contributes to harm to sex workers through stigma and exclusion, and if the research is accurately reflecting the experiences of the studied population. The violent Othering of research participants is of utmost ethical importance, especially in this field, and one cannot claim to contribute to a nuanced understanding of sex work without being cognisant of these concerns.

Pride aside: Beg, borrow and fully realise the struggle of chasing the academic dream

by Dr. Zarah Pattison, University of Stirling.

Aaaaaaand…SEND.

When you have worked your arse off, gotten three degrees and work experience; sending (begging) emails to make people aware you are looking (desperately) for a job can hurt an already Imposter Syndrome riddled ego. Oh, and let’s not forget my Twitter CV post frenzy either…ahem.

I love where I work at the University of Stirling. Five months before I finished my PhD, I had secured a postdoc position with another group in the same department. This was something I never thought I could achieve. I worked furiously trying to finish the PhD whilst setting up the experimental design for my postdoc research. I handed in my thesis and went straight into my postdoc field- and lab-work for the next year. Once my data were collected, I had 6 months left and instead of smashing through the analyses and churning out a paper or two, I knew I had to start job hunting. Being in the position of not earning a salary was financially and mentally not an option for me.

I knew I wanted to stay in Scotland, preferably Stirling. So I wrote fellowship applications, grant applications, postdoc and lectureship applications – you name it. I also applied for a job outside of academia, as well as postdoc positions abroad. However, I didn’t want to move. I have recently gotten married and my now husband, who was previously supportive of a nomadic life, now says; ‘No, I am not moving unless you get a contract longer than a couple of years’. He has fallen in love with Scotland and has a job which enables him to support his daughter. But I can’t shift all the blame on him. I don’t want to move either. I enjoy where I am too.

ZP4

Zarah at her doctoral graduation

So herein lies the academic conundrums:

  • Don’t settle down, it will kill your academic career as it reduces your options.
  • To be a good scientist you must move institution.
  • Two bodies are more difficult to move than one.
  • This list could go on… (For example, I am not even going into to the whole ‘I am getting older what about having a kid’ situation).

This is how I am dealing with the academic conundrums occurring at this stage of my career:

  • ‘Don’t settle down, it will kill your academic career as it reduces your options.’

We want to stay here for now, so we are. A sacrifice which means accepting a non-academic position.

  • ‘To be a good scientist you must move institution.’

To be a good scientist is to gain various perspectives on your work and collaborate. So this is what I am doing. By collaborating and writing grant applications with current mentors and new ones at different institutions.

  • ‘Two bodies are more difficult to move than one.’

For now he keeps his job, we buy a house and focus on the present (like me trying to clear my years of study debt).

  • ‘This list could go on… (For example, I am not even going into the whole “I am getting older what about having a kid” situation).’

This is not my focus, but definitely on my mind.

Never underestimate how time consuming and draining the process of job hunting is. It became my full time job. This ultimately meant falling behind on my current postdoc work and triggered all-consuming guilt. However, I am lucky to have a supportive mentoring team. They looked at my applications, listened to my practice presentations for interviews and gave me the freedom to develop and chase my career.

I did not manage, as yet, to secure a long term academic post. I have accepted a post outside of academia, as well as being recently successful with two grant applications. Which is in itself another conundrum:

  • Give up a full time job for a short term postdoc contract?

Not possible for me in my current situation, but I am attempting to solve this another way. Wish me luck!

 

For more on imposter syndrome, read Eve Kearney’s excellent piece: ‘Dr Kearney Or: How I Learned to Stop Worrying and Love Imposter Syndrome’

Is Street Art Subject to Copyright?

by Dr Aislinn O’ Connell, lecturer in law at Royal Holloway University of London.

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?

Banksy art buff

A Banksy piece entitled ‘Art Buff’, which was returned to Folkestone in the UK from Miami, USA, following a lengthy legal battle. Photo via Helmut Zozmann.

In 2018, retail giant H&M launched an advertising campaign which showed a model wearing their clothes, in front of a wall which had been illegally sprayed by street artist Revok. He sent them a letter requesting they cease using his artwork without payment. H&M responded by seeking a declaration from the Eastern District of New York court that illegally placed graffiti is not subject to copyright protection.[1] Although H&M later dropped the suit, and posted on their Twitter that they did not intend to ‘set a precedent concerning public art’, interest in the legalities of protecting street art is clear, and growing. In the time between beginning[2] to write this article for Women are Boring and the time of publication, another lawsuit regarding street art has hit the headlines. Oakley, a glasses manufacturer, was named as the defendant in a Californian lawsuit.[3] Donald Robbins and Noah Daar, better known as Keptione and DJ Rakus, alleged that their artwork was deliberately included in an Oakley advertising campaign without the correct licence.

Street art – that is to say, visual artworks located in public – is not going away. Although the practice of writing on walls stretches back tens of thousands of years,[4] modern graffiti and aerosol painting dates slightly more recently, to the 1970s in New York,[5] then spreading to other locations.[6] The practice of writing and drawing on walls is not new, from London advertisers[7] to loyalist murals in Northern Ireland.[8] The monetisation of that work, however, brings new issues with it. With street art pieces selling for six-figure sums,[9] street art pieces being sold ‘with house attached’,[10] and disputes being taken to court over who owns the wall on which a Banksy mural was placed,[11] street art is a valuable commodity. It was this specific case – Creative Foundation v Dreamland – which ignited my interest in this area of law. Although it was a protracted legal battle over who owned an artwork, the person who created the artwork – anonymous street artist Banksy – was only briefly mentioned in the judge’s decision, to state that he presumably owned the copyright in the work.[12] From there, my interest was ignited. Is there a copyright in street art? And if so, to what extent can artists use that right to protect and control their artworks?[13] 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 attempted to deny creators of artworks the right to profit from further use of those artworks?

Graffiti, street art, or any form of damage to property, is a criminal offence under s1(1) of the Criminal Damage Act 1971. Local authority officers who suspect that an individual has been writing graffiti or fly-posting are empowered to issue a fixed penalty notice[14] of £100[15] on the spot. They can alternatively prosecute for penalties under the Criminal Damage Act, including a custodial sentence of up to ten years for sufficiently severe damage.[16] Local authorities are also empowered to serve notices on property owners, requiring them to remove defacements to their buildings,[17] or allowing the Local Authority to recover the costs of removing such defacements.[18] While there is much discussion on whether graffiti is art or crime (or both),[19] graffiti prevention and control,[20] urban perspectives on graffiti cultures,[21] there is little discussion of how, or whether, street artists can exercise their rights to control their artwork, and the tensions that might create when juxtaposed against the criminal penalties which exist, as well as the rights of property owners whose works are – arguably – defaced by the artist.[22] Therefore, when works of art are being sold for millions, or reproduced for public consumption, is there any benefit to the artist from this?

Under the Copyright, Designs, and Patents Act 1988, any artistic work, any painting, drawing, chart, map, or plan, is protected by copyright.[23] Copyright is the set of rights which allows the owner of that copyright to control the reproduction and distribution of that work to the public, as well as controlling renting or lending to the public, communicating the work, or doing any of the above with relation to that work.[24] Simply put, an artwork cannot be reproduced or distributed without the permission of the author, or the person who the author assigned their copyright to. This applies regardless of the artistic quality of a work[25] – so a work of majestic skill and passion is protected to the same extent as a work which is badly drawn, badly executed, and visually unappealing – provided the required standard of creativity is met. The standard, which was set out in a European case called Infopaq,[26] states that in order to attain copyright protection, the work must be ‘the author’s own intellectual creation’.[27] This means it need not necessarily be skilled work, simply creative work. Thus, while there may be some street art that does not meet the required standard, it is so unlikely as to be impossible that all street art would fail the standard, meaning it is not a barrier to copyright protection. Thus, from a reading of the Copyright, Designs and Patents Act 1988, together with relevant case law from the European Courts, there is nothing that prevents copyright from arising in works of street art. However, this then runs into tension against the conception of street art and graffiti as discussed above, illegal criminal damage, and subject to criminal penalties. As well as this, there are procedures in place to prevent those who commit crimes from profiting from that criminal activity – which could apply to those who seek to gain economically from graffiti or street art.[28] However, control of one’s art – and the rights granted by copyright – are more than just economic rights. Copyright also grants moral rights, including the right of attribution[29] (to be identified as the author of the work) and the right to object to derogatory treatment of the work.[30] As such, while the Proceeds of Crime Act 2002 may prohibit artists from gaining economically from their criminal vandalism, it would not necessarily prevent the copyright from arising in the first place. It would simply empower the recovery of profits made after the fact.

While there have been multiple attempts by graffiti and street artists to claim copyright in their works, all have settled out of court or been dismissed, including suits against fashion house Moschino,[31] fashion house Cavalli,[32] McDonalds,[33] and American Eagle Outfitters.[34] Equally, street artists have exercised rights which are ancillary to copyright in both the UK and the US. Anonymous street artist Banksy profits[35] from the Artist’s Resale Right,[36] a right which entitles creators of physical artworks to a proportion of the proceeds from the sale of their work. Although not strictly copyright, the Artists Resale Right is closely linked to it. Similarly, a 2018 New York case granted almost $7million dollars in damages to 45 street artists after their (placed with permission) artworks were whitewashed by owner of the buildings they were painted on. This too was not under copyright, but under the Visual Artists Rights Act 1990,[37] which grants specific protections to artworks of recognised stature which are displayed in public.[38]

However, while the granting of ancillary rights may go far to suggest that street art is gaining legitimacy as art which is protected by law, there still is not yet a case precedent which adequately settles the question of whether street art is subject to copyright protections and provisions, whether legally or illegally placed.

All of the cases mentioned immediately above were from US courts, which have similar – although not identical – provisions to the UK. There is, as yet, no similar complaint which has been lodged in the English courts. The only mention in English courts – aside from prosecutions for criminal damage and vandalism – is in the 2015 Creative Foundation v Dreamland[39] judgment. In this case, which concerned the removal of a Banksy mural from a wall in Folkestone for sale in Miami, the dispute was whether the wall (and consequently the mural which was painted on the wall) was the property of the landlord of the building or the tenant occupier. In finding for the landlord, Arnold J stated:

For the avoidance of doubt, I am not concerned with the copyright in the artistic work, which prima facie belongs to Banksy[40]

This presumes not only that the copyright in the work belongs to Banksy, but also that a copyright actually exists in the work. However, it is not a binding declaration, and does not explicitly grant copyright in works of street art.

I would argue that an interpretation of UK copyright law as it stands does include street art and graffiti which reaches the required standard of creativity. There is no statutory provision or case law which denies those automatic protections to street art, and there is arguably case precedent which supports it. Although there are inherent tensions between the criminal nature of some works of vandalism and the granting of artistic rights, depriving artists who paint without permission of the rights which automatically arise for those who paint with permission is an unjustifiable derogation from current law which is not supported by an interpretation of the provisions as they stand. And, as the history of artists taking others to court to protect their rights shows, I am not alone in this stance.

 

[1] H&M Hennes & Mauritz GBC AB et al v Williams, EDNY 1:18-cv-01490

[2] H&M [hm]. (15 March 2018). https://t.co/NMLCiv4iSt [Tweet]. Retrieved from https://twitter.com/hm/status/974384097316491264 accessed 25 June 2018. The tweet consists of an image, with the following text:
H&M respects the creativity and uniqueness of artists, no matter the medium. We should have acted differently in our approach to this matter. It was never our intention to set a precedent concerning public art or to influence the debate on the legality of street art. As a result, we are withdrawing the complaint filed in court. We are currently reaching out to the artist in question to come up with a solution. Thank you for your comments and concerns, as always, your voice matters to us.

[3] Robbins et al v Oakley, Inc et al, Central Californian District Court 2:18-cv-05116

[4] Valladas and others, ‘Radiocarbon AMS Dates for Paleolithic Cave Paintings’ 2001 43(2B) Proceedings of the 17th International Radiocarbon Conference 977.

[5] Norman Mailer, Mervyn Kurlansky and Jon Naar, The Faith of Graffiti (New York: Praeger, 1974)

[6] For more, see photographic collections of street art such as Magda Danysz, From Style Writing to Art: A Street Art Anthology (Drago, 2010); Martha Cooper and Henry Chalfant, Subway Art (Thames & Hudson Ltd, 1984); Henry Chalfant and James Prigoff, Spraycan Art (Thames & Hudson Ltd, 1987).

[7] On which see Alison Young, Street Art, Public City: Law, Crime and the Urban Imagination (Routledge, 2013), 5.

[8] Magda Danysz, From Style Writing to Art: A Street Art Anthology (Drago, 2010) 304.

[9] Maev Kennedy, ‘Sotheby’s cleans up on Banksy at £500k a time’ (6 June 2014, The Guardian) <https://www.theguardian.com/artanddesign/2014/jun/06/sothebys-banksy-artist-exhibition-street-art> accessed 25 June 2018.

[10] Sara Newman, ‘Banksy mural goes on sale – with a house thrown in’ (10 February 2007, Independent) <https://www.independent.co.uk/news/uk/this-britain/banksy-mural-goes-on-sale-with-a-house-thrown-in-435813.html> accessed 25 June 2018.

[11] Creative Foundation v Dreamland Leisure Ltd, [2015] EWHC 2556 (Ch)

[12] ibid, 2.

[13] You may question why this article does not include any images of works of street art; this is because of its conclusion. I would argue that street art does attract copyright protection, and thus to include pictures of street art without a proper licence would be an infringement of copyright. Even if I took the photographs myself, the artwork which is depicted in the photograph would have a separate copyright, and thus publishing that photo without a licence for the street art work would be a violation of copyright.

[14] Anti-Social Behaviour Act 2003, s 43(1).

[15] Environmental Offences (Fixed Penalties) (England) Regulations 2017, Reg 7.

[16] Prolific tagger Tox, whose tags are visible on trains, buses, walls, bridges, from London to Paris, was sentenced to 27 months in prison after being convicted of multiple counts of criminal damage in 2011. Paul Cheston, ‘Prolific Graffiti vandal jailed for 27 months’ London Evening Standard (18 July 2011) <https://web.archive.org/web/20111217055429/http://www.thisislondon.co.uk/standard/article-23970702-prolific-graffiti-vandal-jailed-for-27-months.do> accessed 25 June 2018.

[17] Anti-social behaviour, Crime and Policing Act 2014, s 43.

[18] ibid, s 47.

[19] See, for example, Cameron McAuliffe and Kurt Iveson, ‘Art and Crime (and Other Things Besides … ):

Conceptualising Graffiti in the City’ (2011) 5(3) Geography Compass 128

[20] For example, Jeff Ferrell, ‘Urban Graffiti: Crime, Control and Resistance’ (1995) 27(1) Youth and Society 73; Rob White, ‘Graffiti, Crime Prevention and Cultural Space’ (2001) 12(3) Current Issues in Criminal Justice 253

[21] For a fascinating look at feminism in American hip hop and graffiti cultures, see Jessica Nydia Pabón-Cohón, Graffiti Grrlz: Performing Feminism in Hip-Hop Urban Diaspora (2011, NYU Press).

[22] That is not to say that there is no discussion. See, for example, Enrico Bonadio, ‘Copyright protection of street art and graffiti under UK law’ (2017) 2 Intellectual Property Quarterly 187; Marta Iljadica, Copyright Beyond Law: Regulating Creativity in the Graffiti Subculture (2016, Hart).

[23] Copyright, Designs, and Patents Act 1988, s4.

[24] ibid, s16.

[25] ibid, s4.

[26] Infopaq International A/S v Danske Dagblades Forening (2009) C-5/08. This case concerned whether short summaries of news articles attracted copyright protection as creative works in their own right, or whether they could be freely copied on the basis that they did not meet the minimum standard for copyright protection. The court found that they were sufficiently creative, and were subject to protection.

[27] Infopaq at paras 1, 6, 7, 11, 33, 35, 37, 44, 48.

[28] For more information see Criminal Prosecution Service, ‘Proceeds of Crime’ (undated) <https://www.cps.gov.uk/proceeds-crime> accessed 25 June 2018.

[29] Copyright Designs and Patents Act 1988, s 77.

[30] Copyright Designs and Patents Act 1988, s 80.

[31] Tierney v Moschino et al, Central California District Court, 2:15-cv-05900-SVW (PJWx).

[32] Jason Williams, et al v Roberto Cavalli SpA, et al, Central California District Court, CV 14-06659-AB.

[33] Berreau v McDonalds Corp, Central California District Court, 2:16-cv-07394.

[34] Anasagasti v. American Eagle Outfitters, Inc, New York Southern District Court, 1:14-cv-05618.

[35] Maev Kennedy, ‘Sotheby’s cleans up on Banksy at £500k a time’ (6 June 2014, The Guardian) <https://www.theguardian.com/artanddesign/2014/jun/06/sothebys-banksy-artist-exhibition-street-art> accessed 25 June 2018.

[36] The Artist’s Resale Right Regulations 2006, s 3.

[37] Visual Artists Rights Act of 1990 (VARA), 17 USC § 106A.

[38] Aislinn O’Connell, ‘The 5Pointz Case: Damages awarded against property owner for whitewashing street art’ (2018) 7(1) Journal of Intellectual Property Law and Practice 529.

[39] Creative Foundation v Dreamland Leisure Ltd, [2015] EWHC 2556 (Ch).

[40] Creative Foundation v Dreamland Leisure Ltd, [2015] EWHC 2556 (Ch) 2.