ARTISTIC VANDALISM: A COPYRIGHT STORY

Written by: Vidya Mukherjee[1]

Travelling through the streets of India, it is impossible to miss graffiti painted on the wall every few minutes. Yet, for most people, the first thought on hearing of this art form is of vandalism. Graffiti in actuality, is a form of visual communication, involving often the unauthorized marking of public space by an individual or a group[2]. This craft originated in the 1960s in the US with simple tags on the walls by writers like Taki183, with a history of gang divisions, which then spread across the world, claiming other parts of the urban space as their canvas[3] into what it is today. Graffiti has evolved from pure vandalism and gang demarcation, growing into an artistic endeavor with values. This form of art is used as a tool of expression, ranging from spreading awareness, painting an idea, or raising a voice against oppression, increasing the importance of visibility now more than ever. The nature of this art with its tendencies to flout the law, whether artists like Banksy and Tyler can claim copyright over their work. In this paper aims to discuss the different aspects of the Copyright regime and lays down various arguments as to whether graffiti should be protected under the ambit of the Indian Copyright Act or not. It primarily analyses the arguments relating to the basic requirements for protection under the Act, with consideration to the panorama exception as expounded under section 52 of the Indian Copyright Act. It draws parallels with public art on sculptures of otherwise. It draws from UK’s existing laws and precedents to further the cement the conclusions being reached. After the entire examination of various arguments, it establishes that graffiti can fall under the ambit of Copyright and establishes the threshold of protection under the same.

I. Illegality

The essence of Street art is that it is painted in the public space, this fact raises questions of illegality[4], especially when claims of copyright is made. The Copyright Act does not itself mention anything related to illegal artworks not being copyrightable, the lack of jurisprudence on the subject makes it all the more a grey area. In Creative Foundation vs Dreamland & Others[5], the High Court of England and Wales noted that there is no doubt that Banksy held the copyright to the artwork in question. The Court held the property owner in breach of its alteration prohibition, directing that the mural be restored into its place. From an analysis of the judgement, it seems that the Court is discounting the issue of illegality under a copyright concern. I agree with the UK Court, illegality should not be a concern in awarding copyright. A parallel to this could be of a person who writes a story in a stolen notebook or creates a craft piece out of stolen goods. In either of the cases, it would unfair on the person if no protection of any kind is given to the story of the craft piece created by him or her. The degree of protection could vary from an idea copyrighted object, but some amount of protection deserves to be awarded to art in spite of the aspects of illegality attached with. 

II. Subject Matter

Graffiti is often used synonymously to vandalism, and vandalism is no artistic work. But, as established earlier illegality is not a concern in Copyright cases. This allows us to see graffiti for what it is, that is art. Section 13 of the Indian Copyright Act lays down a laundry list of items that qualify as copyrightable work, subsection (1)(a) includes within this artistic work. The Copyright, Designs and Patents Act, UK (“CPDA”) directly includes graphical work as part of the definition of their artistic works under Section 4 of the Act. It further clarifies the ambit of graphic to include work of artistic craftsmanship, paintings, drawings and more. Nevertheless, this does not mean that graffiti, in general, becomes copyrightable. Graffiti is an umbrella term for various kinds of street art, which range from tags, throw-ups, stenciling, to murals and paintings. To clarify whether the entire spectrum deserves protection under the regime, they must be adjudged on a case to case basis, depending on the kind of graffiti it is. Murals are essentially paintings just with a wall for its canvas. Given that the nature of this form of graffiti, is analogous to paintings on canvas or otherwise, it can easily be construed that they would fall well within the definition of artistic work.

Tags, however, are a way of authors marking that the work of graffiti is made by them. Some authors like Tyler, keep it limited to spraying their name in printed format, others like Banksy have a more elaborate and artistic way of expressing their tags. The issue with tags is whether it is expressive enough to be awarded copyright protection. It can be argued that tags are signatures of graffiti artists at the very best and therefore should not receive protection under the copyright regime. This is comparable to how a painter signs his or her name under the painting, as graffiti artists do too, to gain acknowledgement for their work. Some argue that tags are essentially calligraphed names, too small and trivial to be awarded copyright on it. This argument would hold wait in India especially since Courts are reluctant to award protection for titles of books, songs and more, for this exact reason[7]. While these arguments are valid for most cases, some tags can force us to carve an exception for them. For example, Banksy’s tag has several interesting changes. The back of the ‘B’ is missing, the ‘K’ is essentially resting on the ‘N’ using it as its back. Further, the head of the ‘S’ is missing and Y is in the shape of a glass, with a part of the stem missing. The question is, does this count for enough expression. The answer to the question is difficult to arrive and would have to be left on the Courts to decide. Given that tags are mostly signatures, it is unlikely that they will be awarded copyright, save for exceptions such as that of Banksy. 

III. Originality

It is not enough that graffiti qualifies under the laundry list of copyrightable items, it must fulfil other crucial elements to be able to avail of the protection. One of them is the test of originality, as is mandated by Section 13 of the Indian Copyright Act. No Copyright legislation defines originality, leaving it primarily on the Courts to decide on the required threshold for it. The Indian jurisprudence on this question follows primarily the threshold set by Feist Publications vs Rural Telephone Service Co.[8] The Court laid down the test of “modicum of creativity” to judge whether the concerned work is sufficiently original. This is test is similar to the threshold of originality envisioned by the authors of the Berne Convention. An analysis of its preparatory papers shows a link being made between originality and personal creativity[9], which is not very different from the understanding of the Court in Feist. The Canadian Court on similar lines had created the test of originality added with skill and judgement of the author to judge originality, in the CCH Canadian Limited V Law Society of Upper Canada[10]. A lot of scholars claim the tests to be vastly different, in my opinion, the essence of the Canadian Test boils down to the modicum of creativity as laid down by Feist. Graffiti Tags can arguably fail the test because the word is too short to successfully be a modicum of creativity, but an argument could be made for tags like Banksy, that the expression of the Tag itself is so different that it includes a modicum of creativity. This can be compared with the Tags of artists like Tyler, whose tag is a simple spray painted name in print form. This on the face of it does not seem to very creative and thus would not get a copyright for its tag, unlike Banksy who has a strong case for winning the protection under the Copyright regime. This dilemma does not arise at all in the case of murals, which on the face of it shows that a lot of skill, judgement and creativity has gone into it. The debate arises when there are competing similar murals claiming copyright. The latter is not something out of the ordinary as it is in the canvas art world. Graffiti as a culture includes a lot of sharing and appropriation from one another. This nature of graffiti as a culture is not unique and can be noticed in other works of art, such as the music industry. Therefore, to judge whether a certain piece of graffiti is original or not, one will have to conduct the look and feel test as was laid down by the Court in R.G. Anand vs Deluxe Films[11]. The test requires a person with no expertise in the art to judge the similarity between the two contesting art works to decide whether there is sufficient originality present in the subsequent work of art. In my opinion, the test should be the look and feel test from the eyes of an expert, this is because of the unique culture of Graffiti. While sharing appropriation is not distinct to this cultures specifically, the acceptability of this fact is distinct from any other comparable art industries. For Example, Banksy is open about the influence Blek le Rat has over his art[12], but there has been no report of Rat taking any offence of Banksy’s work. Banksy and Blek le Rat are not the only ones belonging to the graffiti culture who share this relationship. Thus, given this unique manner in which this culture and art industry engages, an exception should be made from the look and feel test, considering the views of a person who genuinely understands the culture and its ways.

Another interesting aspect to the discussion on originality is related to the original sketches made by the artists before they create the mural on the wall. Some might argue that the mural is no longer original, because of the original sketch by the same person. This argument would not hold true as the original sketch before a mural is congruent to a draft of a novel writer. In other words, the original draft or sketch is considered part of the process and therefore does not interfere with the standards of originality.

IV. Fixation

Further, Section 14 of the Indian Copyright Act requires the work to be fixed in some form of medium, ranging from voice recording to the walls of buildings. The requirement is not limited to India. The Berne Convention under Article 2(2), also requires that the concerned work be fixed in tangible form. The purpose of this doctrine is to ensure that the work is not transient in nature and that it stays affixed for a period time period[13]. Prima facie, graffiti fulfils the criterion of fixation, but a deeper analysis of the culture creates avenues for doubt. Murals and tags are primarily painted on the walls of public buildings, trains and other such places. This makes this form of work prone to being removed within a short period of time, ranging from hours to weeks. Thus, one might question as to whether this form of art truly can be considered fulfilling the requirements of Section 14. A parallel could be drawn with a drawing on sand, in this case, there is a guarantee that the same will disappear in a few moments. The guarantee and its extremely short cognitively period would automatically fail the threshold for fixation. This is inherently different for graffiti. In this case, there is a risk that the work of art may be removed, but there is no guarantee of the same. Innumerable streets in the world are covered with graffiti, some are being removed, but there umpteen number of those who stay as it is for years. Thus there is no guarantee that a mural or tag placed in public will definitely be removed in no time. The boom of graffiti, adds to the same fact. It is highly unlikely that a person will remove a mural painted by Banksy, David Choe and their likes. In fact, in many cases, people might claim that it increases the value of the property simply because it holds the work of such a renowned artist. Regardless of the doubts that one might say, one can decisively conclude that the art fulfils this requirement.

V. Panorama Exception

Before one concludes the copyrightability of graffiti, it is necessary to distinguish this form of work from public art[14]. For this paper, public art refers to art in the public domain. Graffiti as an art form is a site-specific art[15]. The Copyright Act through its fair use doctrine under Section 51 restricts the right of the copyright owner, when the copyrighted object is in the public space, free to be accessed by all. The restriction of this right, is known as the panorama exception in certain parts of the world. Since graffiti has no special mentioned and is mostly considered within the ambit of artistic work, the same rules that apply for any other publicly placed copyrightable work, would apply for graffiti as well. This, leaves, the graffiti owners’ rights in a similar standing as that of anyone holding copyright to an open access work on the internet or otherwise. The law in UK is not very clear either. Section 62 of the CDPA provides the panorama exception to selected works under the CDPA. The list in Section 62 does not mention graphic works, which is a specific heading under the said Act. This could lead to a possible conclusion, that the panorama exception does not apply to graphic works. Nevertheless, the lack of jurisprudence on the subject, prevents one from cementing this conclusion.

As iterated earlier, graffiti is a mode of expression that the artist uses to send a message to the world at large. Artists like Banksy, Rat and now Tyler are known for stating their political views in the form of graffiti. Many a time, this art form has been used to send simple messages of encouragement[16], or spread awareness regarding drug abuse and others. Thus the canvas for this art be the public space and not the private white-board. This is very different from art in the public domain. In the latter case, the public space does not play such a crucial role half as much as it does for graffiti. In the case of public art, the concept of the public space is incidental to the art, the reasons behind it ranging from a strategy towards popularity or lack of an alternative viable option. Thus it would be great injustice to this subculture if it is treated on a similar platform with that of art in the public domain. While jurisdictions such as the UK and India treat public art as any work in the public domain, there are some jurisdictions which are recognizing the importance of public space as a site for the art. The Australian Copyright respects the author of a public work giving it almost the same protection as it would a private work of art. The Australian Act clarifies that the panorama exception that is provided for sculptures, and other listed items, categorically does not extend to public art. In my opinion, graffiti as an art form should at least be awarded similar protection in the Indian Copyright regime as the Australian Copyright Act provides. 

VI. Conclusion

There is no law in India that governs graffiti art., the closest it comes to is a protection under the copyright regime. As noted earlier, the art form falls under artistic work under Section 13 of the Copyright Act. Even though it is arguably, more transient than the traditional forms of artistic work, graffiti does pass the test of fixation as is stipulated within the Act. While this paper does not deal with the rights of garffiti artists, it would be incomplete without a mention of the panorama exception which makes that, at the very least the graffiti work owners would have to be mandatorily acknowledged under the rule of law. In conclusion, Graffiti art, irrespective of the nature or style of the art is copyrightable. The level of copyrightability will depend on the tests applied by the Court, however, given the degree of similarity with various art forms such as music and painting itself, the Court would be able to apply the look and feel test, at least as a point of beginning. With each day passing, graffiti art grows to be a weapon of choice about all things political and not, at the same time providing an outlet for artistic expression. Countries like Australia and especially the United States of America are recognizing rights of graffiti artists through seminal cases like the Creative Foundation vs Dreamland & Others in UK the Cohen vs G&M Reality (popularly called the 5 Pointz case, show us that the Courts are proceeding in that direction.[17]

References

[1] Jindal Global Law School

[2] Stacie Sandifer, Unauthorized and Unsolicited: Is Graffiti Copyrightable Visual Communication, 12 J.F.K. U. L. Rev. 141 (2009).

[3] Iljadica, M. (2016). Copyright beyond law. Bloomsbury.

[4] Al Roundtree, Graffiti Artists Get Up in Intellectual Property’s Negative Space, 31 Cardozo Arts & Ent. L.J. 959 (2013).

[5] Unclean hands doctrine

[6] EWHC 2556 (Ch)

[7] See cases such as the Desi Boyz case.

[8] 499 U.S. 340 (1991)

[9] Krishna Hariani; Anirudh Hariani, Analyzing Originality in Copyright Law: Transcending Jurisdictional Disparity, 51 IDEA 491 (2011).

[10]  AIR 1978 SC 1613

[11] 2004 SCC 13

[12] BBC Timelines. (2019). How did Banksy become the world’s most famous vandal?. [online] Available at: https://www.bbc.com/timelines/zytpn39 [Accessed 3 Oct. 2019].

[13] Creation Records vs News Group Papers

[14] For the purposes of this paper, it includes art that is broadly in the public domain, either by virtue of it being part of a sculpture or otherwise. Though one might view it interchangeably, I am excluding graffiti and street art from this definition.

[15] It is an art whose value comes from the positioning of the art.

[16] John Eric Seay, You Look Complicated Today: Representing an Illegal Graffiti Artist in a Copyright Infringement Case against a Major International Retailer, 20 J. Intell. Prop. L. 75 (2012).

[17] Graffiti artists had covered an abandoned factory named 5 Pointz with all kinds of graffiti. A few years later a developer Company with an intent to ‘transform’ the entire place tore down the entire structure. A group of artists petitioned against the Company for copyright infringement.