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.

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3 thoughts on “Is Street Art Subject to Copyright?

  1. mramusicplace says:

    Are the musical performances of street musicians protected by copyright laws from being recorded and distributed without the musicians consent? If so, would they still be protected if the musician were performing in a public place but had not secured a required license to perform in that space? Is it not incumbent on the street artist to legally procure the space in which he or she wishes to ply his or her art, be it space in which to play music or a wall on which to paint?

    Like

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